Mexico: Lost in Transition

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I. Summary and Recommendations

Mexico's
2000 presidential election was a decisive turning point in the country's
transition to democracy.The victory of
Vicente Fox, an opposition candidate, marked the end of seven decades of one-party
rule.And the support he received from
voters across the political spectrum made clear that Mexican society was ready
for this change.

But elections alone do not make a democracy.How a country's leaders are selected is, of course,
fundamental.But so is how they
govern.And a principle requisite of
democratic rule is that a nation's leaders be fully accountable to its citizens, as well as to its laws.

President Fox inherited a political system whose defining
feature had been, precisely, its lack of accountability.In addition to rigging elections, the old regime had routinely violated the rights
of its citizens, as well as its laws, and then covered up these violations by
withholding basic information from Mexican society,
while rejecting scrutiny from abroad.After the 2000 election ended one-party rule,
the critical challenge that Mexico
still faced in its transition to democracy was how to end this pattern of
violation and cover-up.

Six years later,Mexico
has made dramatic progress in addressing one part of that pattern, but very little in addressing the other.Under President Fox,
the country has pursued a course of unprecedented openness and
transparency-allowing international scrutiny of its rights practices and public
access to information held by government agencies.What Mexico has yet to do, however,
is effectively address the human rights problems that this openness and
transparency have helped to expose.In
particular, the country has yet to
establish accountability for past atrocities, or to make serious progress in
curbing the abuses that continue to be committed on a regular basis today.President Fox's efforts in these areas, while ambitious on paper,
have largely failed to achieve their principal goals.

This report examines the current state of Mexico's transition to democracy
from a human rights perspective.It does
not address all the pressing human rights issues facing the country today.Rather,
it focuses on those that are, in our
view, most directly relevant to the
challenge of promoting democratic accountability: openness to international
rights monitors (Chapter 2); public access to government information (Chapter
3); accountability for past abuses (Chapter 4); and reforms of the justice
system needed to end ongoing abuses (Chapter 5).In its concluding chapter, the report discusses the most notorious human
rights case of recent years-the murder and "disappearance" of hundreds of women
in Ciudad Jurez-showing how that tragedy illustrates the main themes of this
report (Chapter 6).

The report's findings are based on extensive interviews with
Mexican officials from all three major political parties and all three branches
of the federal government, as well
as from various state governments and autonomous institutions.The findings are also drawn from extensive
interviews and consultation with representatives from local nongovernmental
organizations, which have played an
absolutely essential role in promoting democratic change in Mexico,
as well as with lawyers, journalists, scholars,
and leading members of Mexican civil society.Finally, the findings draw
upon interviews with numerous victims and relatives of victims of human rights
violations.

As Mexico
prepares for its first presidential election since the end of one-party rule, the country's transition to full democracy remains
far from complete.President Fox's human
rights agenda has helped to advance this transition in certain key areas. Yet, Mexican
democracy remains shackled by the laws and institutions it inherited from the
old regime.The challenge of delivering
the country from its authoritarian past will soon pass to a new president.To meet this challenge,
the next administration will need to pursue an aggressive human rights
agenda-building upon the strengths of Fox's agenda,
while avoiding its significant shortcomings.

Openness and Transparency

A central obstacle to democratic accountability in Mexico
has been the culture of secrecy that has traditionally pervaded all areas of
government.For years, Mexican citizens were denied access to the most
basic information regarding the institutions and even the rules that governed
their daily lives.In addition to
infringing upon their right of access to official information, this lack of transparency severely undermined
their ability to counter the abusive practices that state agents and
institutions routinely committed against them.

The stifling impact of this culture of secrecy was
compounded by the country's refusal to allow international scrutiny of its
human rights practices.The old regime
actively discouraged and disregarded such scrutiny on the grounds that it
constituted foreign meddling in the internal affairs of the state.Even under President Ernesto Zedillo, whose government showed greater willingness to
engage with international rights monitors,Mexico
never abandoned the position that respect for state sovereignty was more
important than the protection of basic rights.

A New Foreign Policy

One of the first significant policy shifts that the Fox
administration brought to Mexico
was its rejection of a radical doctrine of non-interference that had defined
the country's foreign policy for years.On his first full day in office,
President Fox signed an agreement with the United Nations High Commissioner for
Human Rights (UNHCHR) that committed Mexico
to collaborating with the U.N. office to assess and improve Mexico's human rights
practices.Several weeks later he
announced the removal of onerous travel restrictions that had been used to
limit foreign advocates' access to the country.And in the administration's first appearance before the U.N. Commission
on Human Rights several months later,
his foreign minister extended a permanent invitation to the U.N.'s human rights
rapporteurs to evaluate conditions in Mexico and,
in the same speech, announced the
country's new approach to human rights: Mexico would treat them as universal
and absolute values that surpassed national sovereignty in importance.

The foreign minister's words were backed by a variety of
concrete actions that showed that Mexico was seriously committed to
promoting human rights-both abroad and at home.The Fox administration had scrapped the defensive posture of the old
foreign policy that aimed to shield Mexico
from international scrutiny, and
replaced it with a proactive policy that used the international rights regime
as a catalyst for change within Mexico.

While international scrutiny is not,
in itself, a prerequisite for
democratic rule, accountability
is.And international scrutiny often has
proven instrumental in prompting states to take accountability more
seriously.In the case of Mexico, international scrutiny has played a vital role in
reinforcing efforts by local rights advocates to raise public awareness of the
scope and nature of the country's human rights problems.As with all bad habits,
the first step to addressing these problems is recognizing that something is
wrong.And thanks in large part to the
new foreign policy, the era of total
denial in Mexico
appears to have past.

The Transparency Law

Mexico's
opening to scrutiny from abroad was soon followed by an even more radical
opening to scrutiny from within.In 2002, the Mexican Congress passed a "transparency law"
that dealt a potentially decisive blow to the longstanding culture of secrecy
in government affairs.The new law
established a "principle of maximum disclosure" that essentially reversed the
state's traditional approach to the disclosure of official information.Where in the past disclosure was the
exception, under the new law it
would be the rule.The law also established
a powerful mechanism-the Federal Institute for Access to Official Information
(IFAI)-to enforce this principle within the executive branch and mandated the
creation of comparable mechanisms within the other branches.

The transparency law may prove to be the most important step
Mexico
has taken in its transition to democracy since the 2000 election.And the credit for making it happen is shared
by many-from President Fox who signed the law,
to the legislators from all three major parties who voted to pass it, and,
perhaps most importantly, to a
diverse array of civil society actors who conceived the law and convinced
Mexico's political leaders that it was necessary.

The potential impact of the law received a huge boost from
the 2002 declassification of millions of secret documents from government
archives.The release of the documents, ordered by President Fox,
amounted to a retroactive application of the new principle of disclosure, giving journalists,
investigators, and ordinary citizens
access to government information,
including extensive documentation of past human rights violations that had been
denied to them for decades.

Ongoing Threats to Openness and Transparency

While the transparency law has transformed Mexico's approach to managing
information, there is still serious
danger that the culture of secrecy will reassert itself in the future.The progress made in promoting transparency
within the executive branch has not yet been matched in the other branches of
government, nor in autonomous state
institutions such as the National Human Rights Commission-and the transparency
law does not even cover political parties,
which employ large quantities of public funds to shape the country's electoral
and legislative processes.What's more, within the executive,
the IFAI remains vulnerable to political interference and has already
encountered growing resistance on the part of several key agencies to turning
over information.And in terms of the
declassified archives, meaningful
access remains severely limited by a variety of factors,
including the overly broad application of criteria for protecting people's
privacy, which result in archivists
withholding documents that should be made public.In sum,
the historic advances that Mexico
has made in the area of transparency still remain precarious today.

The opening to international scrutiny has not faced the same
sort of institutional obstacles as the implementation of the transparency
law.Yet the progress here may be even
more precarious, given that it is
neither enshrined in law nor the product of a formal political consensus.It is rather the foreign policy of one
administration and could easily be abandoned as quickly as it was launched on
the first day of the next presidency.

Whether the openness and transparency continue and deepen
will depend largely upon the next administration.To ensure that the transparency law realizes
its full potential, the new
president will need to insist that all government entities provide broad public
access to information in their possession; promote legislation that would grant
the IFAI constitutional autonomy and establish "transparency obligations" for
political parties and other non-state actors that spend public funds; and
support initiatives by other branches of the federal government, as well as by autonomous agencies, to create better implementing regulations to
comply with the transparency law.

On the foreign policy front,
the next administration will need to decide whether to embrace the new openness
doctrine or return Mexico
to the old "don't ask, don't tell"
approach to international human rights.The new president should reject the notion that promoting national
sovereignty is more important than protecting basic rights, continue actively collaborating with the UNHCHR
and other international human rights monitors,
and prioritize the implementation of measures in the National Human Rights
Program, updating it as necessary to
reflect evolving circumstances.

Accountability and Law Enforcement

A central area where Fox's human rights agenda has come up
short has been in its initiatives aimed at addressing another legacy of the old
regime: the routine subordination of the rule of law to the perceived
imperatives of public security.

The most egregious human rights crimes committed over the
years in Mexico have typically targeted people that the state deemed to be
security threats of one kind or another-from armed insurgents, to student activists,
to common criminals.At their most
extreme, these violations included
the massacres of student protesters in 1968 and 1971,
and the torture, execution, and forced disappearance of hundreds of civilians
during the country's "dirty war" in the 1970s and early 1980s.Compounding the horror of these atrocities
was the fact that, for decades,Mexico
failed to investigate and prosecute those responsible,
thereby forcing Mexican society to assimilate the ultimate lesson in the limits
of their country's rule of law: government officials could get away with even
the most brutal crimes.

Far more common than those acts of political violence, however,
have been the routine abuses committed by law enforcement agents against
criminal suspects throughout the country.The most notorious of these has been the use of torture to obtain
confessions from detainees.Another has
been the systematic misuse of pretrial detention,
resulting in innocent people being locked up with hardened criminals for months
on end.

President Fox has launched two major initiatives to address this
legacy of state lawlessness-one aimed at ending years of impunity for past
abuses, the other at preventing
future ones.Both initiatives were
ambitious and essential.Yet both have
so far failed to achieve their main goals.

The Special Prosecutor's Office

In November 2001,
President Fox responded to repeated calls for a truth commission to investigate
past abuses by creating something that was potentially even better: a special
prosecutor's office that would investigate and prosecute these crimes-an
initiative that would, in other
words, seek both truth and
justice.

Yet the results after four years have been deeply
disappointing.The office has succeeded
in obtaining the arrest and indictment of the former head of the secret police
and three other security officials-something that would have been unthinkable
in Mexico
until very recently.But these successes
have been eclipsed by major setbacks.The courts have roundly rejected the special prosecutor's efforts to
indict former President Luis Echeverra and other former officials on charges
of "genocide" for the massacres of student protestors.Although the special prosecutor did win an
important Supreme Court ruling that authorized the prosecution of decades-old
cases of forced disappearance, his
office has managed to file charges in only fifteen of the more than 600 cases
before it. And, as of this writing, the office has not obtained a single
conviction.

Perhaps the most substantial accomplishment of the Special
Prosecutor's Office so far, in
addition to the indictments and the one favorable ruling from the Supreme Court, has been the production of an ambitious draft
report on the history of the past abuses under investigation. Yet this draft
report is, itself, the clearest evidence that the Special
Prosecutor's Office has not lived up to its potential.The report has revealed the existence of
extensive documentation in government archives that implicates former officials
and military officers in the "dirty war" crimes.Yet even the report's main author concedes
that it is a woefully incomplete document,
containing only a small fraction of the information that could have been
collected if a more thorough investigation were carried out.What the draft report shows, in other words,
is that the Special Prosecutor's Office has made some progress in ending the
official cover-up of these atrocities,
but not nearly as much as it might have.

Justice Reform

One of the most ambitious initiatives of the Fox presidency
has been a proposed overhaul of the justice system that would, among other things,
address the root causes of its two most recurrent human rights problems-the use
of torture and the misuse of pretrial detention.

In the case of torture,
the main reason the practice continues is that prosecutors are able to use
coerced statements to convict people at trial.It is easier, they find, to beat a confession out of someone than to
conduct a professional investigation.The Fox proposal would curb this practice by removing the perverse incentive
that promotes it.A modification of the
Federal Constitution would establish that only confessions given directly
before a judge could be used to convict someone of a crime. The coerced
confession extracted in a backroom or basement corridor would no longer be
admissible at trial.

In the case of pretrial detention,
the problem is a legal regime that denies judges discretion to grant
provisional liberty to suspects who are entitled to it-namely those who pose no
danger to society, nor risk of
evading justice.Under current law in
most parts of Mexico, anyone charged with a "serious crime" is
automatically jailed until trial.And, over the years,
popular demand for anti-crime measures has prompted legislators at both the
state and federal level to expand the list of these "serious" crimes to include
a host of nonviolent and relatively minor crimes.As a result,
today more than 40 percent of prisoners in Mexico have notbeen convicted of the crime for which they are being held, many of them locked up for months on end with
convicted criminals.

The Fox proposal represents an important first step toward
reducing this abusive practice at the federal level by allowing federal judges
to grant provisional liberty in cases involving some "serious" crimes.The proposal also calls for a reform of the
Mexican Constitution that would establish a presumption of innocence for
individuals not convicted of a crime.This constitutional guarantee could be used to compel further changes in
federal criminal law, as well as
changes in the criminal law of the states,
to reduce the excessive use of preventive detention at the local level.

Unfortunately,
the proposed reforms have languished in Congress for more than two years, and their prospects for passage in the immediate
future do not seem promising.

Reconciling Rights and Security

The failure of these two very different initiatives reflects
Mexico's
broader failure to integrate human rights and public security into a single
coherent agenda.Perhaps the most eloquent
testament to the enduring imbalance between these two priorities is the fact
that, today,
whereas tens of thousands of unconvicted Mexicans are locked up with hardened
criminals because of their alleged involvement in nonviolent crimes, only four former officials are facing trial in
civilian courts for the abduction,
torture, murder, and forced disappearance of hundreds of people
during the country's "dirty war."

The Special Prosecutor's Office was intended to help rectify
this imbalance.Its failure to do so is, ultimately,
the responsibility of the administration that created it.After launching the ambitious initiative, the Fox administration failed to ensure that the
office possessed the credibility,
technical expertise, and powers it
needed to succeed.It also failed to
ensure active collaboration from other institutions,
including the federal investigative police who have been unable or unwilling to
execute a majority of the arrest warrants in these cases,
and, most importantly, the Mexican military,
which has refused to cooperate in a serious fashion with the investigation and
prosecution of these cases.

The work begun by the Special Prosecutor's Office can still
be salvaged.But it will require the
next president to take concrete steps to overcome the obstacles that have
hindered progress until now.One such
step is to compel the armed forces to collaborate actively with investigators
and prosecutors working on these cases.A second step is to seek legislation granting the prosecutors of these
cases the powers they need to obtain witness testimony.And finally,
to reinforce and complement efforts to prosecute these cases, the president should promote the creation of a
truth commission with the resources,
expertise, and independence necessary
to advance the investigation begun by the Special Prosecutors Office.

Mexico's
failure to pass justice reform proposals into law is more the fault of its
Congress than that of its president.Yet
here too the president could play a much more active role in confronting the
broader political obstacle that impedes their passage: the widespread
misperception that human rights and public security are conflicting priorities.

Opponents of Fox's anti-torture measure argue, for example,
that it would weaken the hand of law enforcement,
and thereby strengthen the hand of criminals.But they are wrong.Rather than
undermining prosecutors, the measure
would merely force them to do their job better.Unable to rely on coerced confessions,
they would need to conduct more thorough investigations in order to obtain
convictions.Current practice-notably
the failure to end the use of coerced confessions-is a travesty for human
rights and public security: innocent people confess to crimes they didn't
commit, while actual criminals go
free.

Similarly,
opponents of reforms aimed at curbing pretrial detention argue that the
proposed measures, like the
anti-torture reforms, would weaken
law enforcement efforts.But, as with torture,
the excessive use of pretrial detention constitutes a serious threat to public
security.The cost of incarceration of
tens of thousands of non-violent prisoners diverts public funds that would more
wisely be invested in efforts to combat violent crime.It also contributes to the severe
overcrowding of Mexican prisons,
which in turn undermines the ability of penal authorities to control inmate
populations-which then, in turn, results in a prison system where petty criminals
(not to mention innocent suspects) must endure months living under the
influence and even supervision of hardened criminals.The end result is a prison system that
functions as a finishing school for delinquents.

Unfortunately, it
seems unlikely that Congress will approve these much-needed measures so long as
the basic misperception of their potential impact on public security
prevails.For Mexico to make progress in
this area, its political leaders-and
in particular its president-will need to campaign actively to persuade the
public that passage of the proposed measures is essential for promoting bothhuman rights andpublic security.

The Lessons of Ciudad Jurez
Of all the human rights problems that rose to prominence during the Fox
presidency, none has received more
local and international media coverage than the state's response to hundreds of
cases of murdered and "disappeared" women over the past decade in Ciudad Jurez,Chihuahua.This coverage has been crucial, both for drawing attention to the plight of the
victims in Chihuahua and for raising much-needed awareness of the chronic
problem of violence against women in Mexico.Yet, the tragedy of Ciudad
Jurez also offers other important-though largely overlooked-lessons related to
the main themes of this report.

One is the lesson that public security and human rights
should be understood as complementary aims.In Chihuahua, innocent people were coerced into confessing to
the killings of women, allowing the
true criminals to remain at large.Another related lesson is that ending these abusive practices requires
reforming the underlying deficiencies of the justice system that give rise to
them.And a third fundamental lesson of
Ciudad Jurez is that international scrutiny,
combined with local advocacy, can
play a crucial role in bringing about real progress in promoting human rights
and accountability.Thanks in large part
to this combination of international scrutiny and local advocacy, the state of Chihuahua is now close to passing precisely
the sort of justice reform measures that the Fox administration has been unable
to get passed at the federal level.In
short, the case of Ciudad Jurez
shows that the kind of reforms that Mexico needs in order to make real
progress on human rights are indeed possible.

Recommendations

Based upon the experience of the past five years, Human Rights Watch believes that there are four
broad policies that the next administration should pursue in order to
strengthen the protection of human rights and advance the transition to full
democracy and rule of law in Mexico.

1)Openness

The next administration should pursue a foreign policy that
encourages international scrutiny of human rights issues within Mexico.Specifically,
it should:

Recognize
the universality of international human rights values and rejecting the
notion that protecting national sovereignty is more important than
protecting basic human rights;

Continue
active collaboration with the U.N. High Commissioner's Office and other
international human rights monitors; and

Continue
implementation of measures proposed in the National Human Rights Program, while working with civil society to
strengthen the programs contents.

2) Transparency

The next administration should promote increased government
transparency.Specifically, it should:

Instruct
all entities within the executive branch to comply fully with the
transparency law and maximize public accessibility to the information in
their possession;

Promote
legislation that would grant the IFAI constitutional autonomy and
establish transparency obligations for political parties and other
non-state actors that spend public funds; and

Support
initiatives by other branches of the federal government, as well as the autonomous agencies and state
governments, to create better
transparency standards and implementing regulations.

3) Accountability

The next administration should promote accountability for
past human rights atrocities.Specifically, it should:

Order
the armed forces to collaborate actively with investigators and
prosecutors of human rights crimes involving current and former military
personnel, and promote
legislation that would prevent any cases involving human rights crimes
from being tried in military courts;

Promote
legislation that would give prosecutors of human rights cases authority to
offer reduced sentences to some individuals in exchange for effective
collaboration in prosecuting these cases;

Establish
a truth commission with the resources and independence necessary to
construct an authoritative account of past abuses and, most importantly,
reinforce efforts to prosecute them.

4) Law Enforcement

The next administration should actively promote the passage
of justice reforms aimed at curbing abuses that undermine public security.Specifically,
it should promote reforms of the justice system that would:

Require
that confessions be made before a judge in order to have evidentiary
value;

Allow
judges discretion to grant provisional liberty to suspects who pose no
threat to society or risk of flight; and

Incorporate
the presumption of innocence in the Constitution.

II. Openness: A New Approach to Foreign Policy

On his first full day in office in December 2000, President Vicente Fox made what would prove to be
one of the more significant gestures of his presidency: he signed a cooperation
agreement with the U.N. High Commissioner for Human Rights (UNHCHR).Under the agreement,
the Fox administration committed itself to collaborating with the UNHCHR's
office to assess and improve Mexico's
human rights practices. What makes that agreement seem so significant now is
not so much the fruits of that collaboration-though these have indeed been
valuable in themselves-but, rather, the fact that Fox signed such an agreement at
all.For with that first act of his
foreign policy, the new president
revealed that Mexico
was embarking upon an entirely new approach to international relations-and, with it,
an entirely new way of handling human rights.

Mexico
had embraced human rights causes in the past.It had signed and sometimes ratified international rights treaties.It had provided a safe haven to refugees
fleeing murderous regimes in Central America, as well as to exiles from the Southern Cone whose
politics had earned them de facto death sentences back home.And its leaders had regularly professed their
commitment to respecting the rights of their own citizens.

But this public embrace of human rights had not translated
into the respect of human rights at home.Even as it subscribed to the treaties,Mexico
pursued policies that blatantly violated their basic tenets.Even as it sheltered other countries'
dissidents,Mexico silenced, persecuted,
and in some cases even slaughtered its own.Even as it professed its commitment to protecting rights,Mexico
built its foreign policy around a radical interpretation of a principle that
rendered this commitment largely meaningless-the principle that states and
international actors should not interfere in the internal affairs of sovereign
nations even in the face of serious human rights violations.

Under President Ernesto Zedillo,
Mexican foreign policy began to change.Mexico
accepted the jurisdiction of the Inter-American Court of Human Rights.It invited international monitors to visit
and report on the country, and
engaged in preliminary discussions with the UNHCHR's office regarding the
cooperation agreement that Fox would eventually sign.And it showed increasing willingness to
discuss human rights abroad.In a 1999
summit in Havana,
for instance, President Zedillo
advocated increased democracy in Cuba: "Today more than ever," he said,
"sovereignty also needs democracy."

Yet, even under Zedillo,Mexico never
abandoned the position that respect for state sovereignty was more important
than the protection of basic rights.Zedillo's bold comment in Havana was quickly
followed by a public assurance from his office that Mexico
had not abandoned its commitment to noninterference in the internal affairs of Cuba.His government's talks with the UNHCHR's
office were effectively shelved and only renewed by Fox's transition team.The
Zedillo administration's invitation to international monitors was followed by
its open rejection of those monitors' recommendations,
expulsion of some foreign rights advocates,
and imposition of onerous travel restrictions that limited the ability of
foreigners to engage in human rights work within Mexico.So if Mexico under Zedillo had finally
opened the door to international scrutiny,
it was only a partial opening.The
government still guarded that door jealously,
always ready to slam it shut at the slightest perceived provocation.

Upon taking office,
President Fox effectively threw the door wide open.His first foreign policy act-signing the
agreement with the UNHCHR-was soon followed by another, similar one: he announced the lifting of the
travel restrictions that had been used to limit foreign advocates' access to
the country.And in his government's
first appearance before the U.N. Commission on Human Rights several months
later, his foreign minister, Jorge G. Castaeda,
extended a permanent invitation to all the U.N.'s special rapporteurs to visit Mexico
and evaluate the country's human rights practices.

If this invitation resembled the one offered by the previous
administration, the international
community had more reason now to believe that Mexico really meant it.Along with the invitation, the foreign minister declared before the U.N.
Commission on Human Rights that Mexico
regarded human rights as universal and absolute values that surpassed national
sovereignty in importance.And these
words were backed up with concrete actions.The administration created the new post of Under Secretary of State for
Human Rights and named a prominent human rights advocate to fill it.It expressed concern about Cuba's human rights record at the 2001 session
of the U.N. Commission on Human Rights and voted in favor of a resolution
against Cuba
the following year.It endorsed the
principle of universal jurisdiction for human rights violations by authorizing
the extradition of an Argentine to Spain
to face charges for violations committed in Argentina over two decades
earlier.And,
after September 11, it became a
forceful advocate for the promotion of human rights in the context of the "war
on terrorism," voting in favor of
resolutions that condemned U.S. actions in Guantanamo Bay,
and pressing successfully for the creation of a human rights and terrorism post
within the UNHCHR's office.

In short, what
convinced the international community that Mexico was ready to engage on human
rights issues was its foreign policy.In
addition to the foreign affairs minister's public invitation, there was also a simple calculus at work: a
country that aggressively advocates human rights abroad effectively forfeits
the sovereignty card as a shield to international scrutiny of its own
practices.For governments unwilling to
address their rights problems, this
is an obvious liability.But members of
the Fox administration approached it as an opportunity-promoting human rights
abroad would make it harder for the country to ignore its rights problems at
home.

Indeed,Mexico
not only welcomed international scrutiny,
in some cases it actively sought it.After Mexican nongovernmental organizations (NGOs) denounced the botched
investigation into the death of rights activist Digna Ochoa, the Fox administration invited a specialist from
the Inter-American Commission on Human Rights (IACHR) to evaluate the
investigation.After the outcry over
ongoing impunity for the murder of women in Ciudad Jurez,
it actively encouraged international monitors to examine the problem.And when it came time to renew the
collaborative relationship with the UNHCHR's office,
it committed itself to something even more radical-the government would work
with the U.N. representatives to develop a comprehensive evaluation of Mexico's
human rights problems that would serve as the basis for a national human rights
program aimed at addressing them.

By the time the UNHCHR signed this second agreement, the Fox administration had essentially inverted
the doctrine that had guided Mexican foreign policy for decades.It had scrapped the old defensive posture
that had aimed to shield Mexico
from human rights norms and replaced it with a proactive foreign policy that
used engagement with the international human rights system as a catalyst for
change within Mexico.

Did the strategy work?Has the new foreign policy brought any improvement in human rights
practices within Mexico?The answer,
so far, is partly yes, but largely no.Mexico
has signed and ratified important rights treaties.Yet the Congress has insisted on attaching
reservations and interpretations that contradict and undermine the potential
impact of some of these treaties (as in the case of the efforts, discussed in Chapter 4,
to prosecute former officials for abuses committed during the country's "dirty
war"). Mexico
has also passed new legislation that explicitly reflects international norms in
a variety of areas.Yet it has failed to
create adequate implementing mechanisms for these new laws, or to modify laws that were already on the
books.And it has failed to pass two of
the most important bills of this sort-a reform of the Constitution that would
clarify the hierarchy of international obligations in domestic law, and a reform (discussed in Chapter 5) that would
address the grave deficiencies of the justice system.Mexico has developed a
comprehensive National Human Rights Program based on the evaluation elaborated
in coordination with the UNHCHR's office.Yet this program failed to incorporate many key recommendations of that
evaluation, while implementation of
those it did include has only just begun.

Mexico's human rights NGOs,
whose advocacy over the years largely paved the way for this change in foreign
policy, have successfully seized
upon the opening to draw increased international attention to the specific
cases and general problems they work on.These local rights advocates have used the heightened international
scrutiny to secure concrete results,
including the release of wrongfully imprisoned individuals, in several important cases.Yet,
despite these successes, they
continue to encounter a deep and abiding resistance on the part of many
authorities to changing the policies and practices that gave rise to the cases
in the first place.

The considerable work that remains to overcome this
resistance and changes these practices does not fall within the ambit of
foreign policy.It is now up to the
other government ministries, as well
as the other branches of government,
to do their part to address the problems that have been more thoroughly exposed
and analyzed these past few years.Yet
openness to international scrutiny will continue to be important for exposing
issues and complementing the efforts of local rights advocates to generate
pressure for change.

The Old Closed-Door Policy

Human rights have long been an important component of
Mexican foreign policy.But, until recently,
the reason they figured there was not because they were a priority, but rather because they were seen as something
that was "foreign," a potential
threat to the interests of the country-or,
more precisely, a threat to the
interests of the regime that governed it.Even during the Zedillo administration,
when Mexican foreign policy began to change,Mexico
was generally reluctant to promote human rights abroad,
and was adamant in rejecting criticism from international actors regarding its
own human rights problems at home.

The old regime relied on the principle of noninterference to
justify this "don't ask don't tell" approach to international human rights. It
insisted on a dogmatic reading of this principle,
according to which foreign entities,
be they states or international monitoring bodies,
had no standing to involve themselves in the internal affairs of sovereign
nations.

When, for example, Human Rights Watch published a report on state
responsibility for rural violence in Mexico in 1997,
the Mexican Foreign Affairs Ministry criticized the "curious timing" of the
report, noting that former U.S.
President Bill Clinton planned to visit Mexico two weeks later.According to the Mexican government, when Human Rights Watch asked President Clinton to
mention the need to end impunity for political violence in Mexico during his visit to Mexico,
"[it seemed] to forget that Mexico
is a sovereign country and therefore,
that it does not receive instructions from any foreign government at all."[1]

The Zedillo administration also imposed restrictions on
human rights activists' ability to visit Mexico.As of May 1998,
the government required visa applicants from human rights organizations to
produce extensive documentation including a Spanish-language version of their
organizations' by-laws and letters attesting to their moral rectitude.A list of all locations to be visited had to
be provided to the government at least thirty days in advance of the trip, a requirement that prevented human rights monitors
from visiting Mexico
during emergencies.The specificity of
the requirements meant that human rights investigators would be prohibited from
traveling to communities that they did not list on their visa applications, a serious impediment to investigators who needed
to follow the leads encountered during research missions.

On several occasions in 1998,
human rights defenders were prohibited from traveling to Mexico because Mexican consular officials, or their colleagues in Mexico City,
appeared unwilling or unable to process visa requests.A lawyer from the Washington, D.C.-based Center for Justice and International
Law (CEJIL), for example, was forced to cancel her participation in a human
rights seminar she was to lead.Another
was given a visa at the last minute that permitted her to do only a small
portion of what she had planned-and requested-to
do.

In addition to making it difficult to enter the country,Mexico
also expelled foreign rights advocates from the country on several
occasions.In June 1995, three priests from Argentina,Spain, and the United
States were expelled for engaging in activities related
to the defense of human rights in Chiapas.In April 1997,
two members of the International Human Rights Federation who had been invited
by NGOs in Mexico to
investigate reports of human rights violations in the states of Guerrero,Oaxaca, and Chiapas, were
expelled after they visited a prison in Acapulco
and took the testimonies of torture victims.[2]In February 1998,
a U.S.
citizen who directed the Mexico Solidarity Network was expelled.A group of NGOs reported over one hundred
other cases of rights observers being expelled from Mexico in 1998.[3]

The formal justification for expelling foreigners was that
Article 33 of the Mexican Constitution grants the executive the authority to
make all foreigners "abandon the national territory,
immediately and without prior trial" if the president considers that their
presence is "inconvenient."That same
article also says that "foreigners may not,
under any circumstances, interfere
with political issues in the country."

When questioned by the IACHR,
the Mexican government justified some of these expulsions on grounds that the
foreign rights advocates had "interfered in the internal affairs of the
country."[4]

A New Approach to Foreign Policy

Promoting Human Rights Abroad

Under President Fox,
Mexico has presented to the United Nations and the Organization of American
States (OAS) several initiatives related to human rights,
including proposals related to the protection of migrants' rights, the rights of indigenous peoples, the rights of handicapped people, and women's right to land,
property and inheritance.For example,Mexico
has played a very important role in the recent adoption by a U.N. working group
of a draft International
Convention for the Protection of all Persons from Enforced Disappearances.[5]

In October 2002,Mexico
successfully proposed the establishment of a mechanism to monitor compliance
with the Inter-American Convention to Prevent,
Sanction and Eradicate Violence Against Women (the "Belm do Par Convention").[6]Mexico has also emphasized the
importance of having a mechanism to promote compliance with the decisions of
the Inter-American Court of Human Rights.Although the Court's decisions are legally binding,
there is currently no mechanism to ensure compliance with its decisions.Until now,
there has merely been a reference to the need to create such a mechanism in an
OAS General Assembly resolution.[7]

Mexico
has played a crucial leadership role in promoting international resolutions and
standards concerning the protection of human rights when states adopt
counterterrorism measures.For example,Mexico
presented a draft resolution, which
was unanimously adopted by the U.N. General Assembly in December 2002, on the protection of human rights and freedoms in
the fight against terrorism.[8]The Mexican Ambassador before the OAS
presided over the working group that drafted the Inter-American Convention
against Terrorism, which was adopted
and signed by thirty of the thirty-four member states in June 2002.[9]

Mexico
has promoted the creation of an international structure to monitor compliance
with international standards on human rights and counterterrorism.Thanks to pressure from Mexico,
the U.N. Counter Terrorism Committee's Executive Directorate now includes a
"Human Rights, Humanitarian, Asylum Law Officer."[10]Mexico has also led the initiative
to get the U.N. Commission on Human Rights to appoint an independent expert on
counterterrorism and human rights,
an initiative that was approved by consensus in April 2004.[11]Based on the report of this independent
expert, as well as the reports of
other U.N. bodies, the U.N.
Commission on Human Rights decided in April 2005 to appoint a special
rapporteur on the promotion and protection of human rights and fundamental
freedoms, who has a three-year
mandate to oversee compliance with international norms on this topic.[12]

To complement the creation of international standards,Mexico
has also promoted the consistent application of these standards to all
governments that violate human rights.A
paradigmatic example is how,
starting with the Fox administration,
the Mexican government decided to vote in favor of resolutions by the U.N.
Commission on Human Rights that criticize the human rights situation in Cuba.After years of abstaining from voting, or voting against the Commission's resolutions on
the human rights situation in Cuba, in 2002 Mexico began voting in favor of
condemning the Cuban government's human rights abuses.[13]The
Mexican government has also voiced concerns at the OAS over the human rights
situation in Cuba.[14]

At the same time,Mexico has criticized human
rights violations by the U.S.
government in GuantanamoBay.In April 2005,Mexico was one of the eight
countries that voted in favor of a draft resolution at the U.N. Commission on
Human Rights that requested the U.S.
government to authorize an impartial and independent fact-finding mission by
U.N. representatives on the situation of detainees at the U.S. naval base in GuantanamoBay.The resolution was rejected by twenty-two
votes to eight, with twenty-three
abstentions.[15]

Mexico
became the first Latin American country to extradite someone for gross human
rights violations under the principle of universal jurisdiction.In 2001,
the Mexican Foreign Affairs Ministry approved the extradition of Ricardo Miguel
Cavallo, an Argentine military
official accused by Spanish courts of genocide,
terrorism, and torture for acts
committed during the military dictatorship in Argentina between 1976 and
1982.After an appeal, in 2003,
the Mexican Supreme Court upheld the extradition order on charges of genocide
and terrorism, though not on charges
of torture.

Mexico
has also used international mechanisms to defend the human rights of its
citizens.In January 2003, it brought a case before the International Court
of Justice against the U.S.
government for violating the right to consular notification of Mexicans on
death row in the United
States.In March 2004, the court
ruled against the United States, arguing that it had failed to inform fifty-four
Mexicans arrested on capital charges of their right to talk to their consular
officials, and ordered U.S.
courts to provide an effective review of the convictions.[16]

Finally,Mexico
has contributed economically to the Inter-American system of human rights.Aside from the budgetary contributions to the
OAS, since 2001 the Fox
administration has provided extra "voluntary funds" (US$225,000 in 2005,
for example) to the Inter-American Commission and Court.[17]

Openness to International Scrutiny

The Fox administration's public repudiation of the dogmatic
and self-serving use of the noninterference doctrine was backed by a wide range
of concrete measures aimed at encouraging international scrutiny of the
country's rights practices.

One of the most significant of these was the signing of a
cooperation agreement with the UNHCHR on the day after President Fox took
office.Former president Zedillo had
signed a memorandum of understanding with the UNHCHR at the end of 1999, but negotiations over the actual agreement were
suspended until after the 2000 elections.Once Fox was elected president,
his team moved forward with negotiations,
which culminated with Fox's signature of the agreement in December 2000.

As a consequence of this agreement,
the UNHCHR established an office in Mexico City, with the purpose of assessing the structural
deficiencies that impeded the full realization of human rights in Mexico, and determining what reforms were necessary to
promote change.During the first phase
of this project, the UNHCHR focused
on capacity building of public officials and civil society members on the issue
of how to combat torture.

The Fox administration signed a second agreement with the
UNHCHR in April 2002, initiating a
second phase of collaboration in which the U.N. office would work with a team
of Mexican experts to produce a National Diagnosis of the Human Rights
Situation in Mexico (Diagnstico sobre la
Situacin de los Derechos Humanos en Mxico).The diagnosis,
which was concluded in 2003,
provided a comprehensive assessment of the human rights situation in Mexico
and a detailed series of recommendations that would serve as the basis for a
national human rights program.

To follow-up on the recommendations set out in the diagnosis, the U.N. office in Mexico
has since carried out a series of projects to improve the human rights
situation in Mexico, focusing mainly on the problem of use of torture, the need to strengthen civil society, and the protection of rights of members of indigenous
communities.[18]

In addition to the collaboration with the UNHCHR,Mexico
signed a cooperation agreement with UNESCO in 2002 to promote public policies
related to human rights and a human rights culture in Mexico.Mexico also signed a cooperation
agreement with the European Commission in 2004 to improve local knowledge of
human rights and the mechanisms to protect them,
and to harmonize national human rights policies and laws with international
standards and obligations.[19]

The Fox administration has also engaged actively with the
Inter-American system of human rights in a variety of ways.In addition to the open invitation that it
extended to the O.A.S. Special Rapporteurs,Mexico
also invited, in an unprecedented
move, a specialist from the IACHR to
evaluate the work of the Attorney General's Office (Procuradura General de la Repblica,
PGR) on a high profile case involving the death of human rights activist Digna
Ochoa.[20]Twenty-one months after Ochoa had been found
dead in her office in October 2001,
the PGR announced that it had concluded its investigation and had found no
evidence that a crime had been committed. In response to vocal criticism by the
Ochoa family and local rights advocates regarding the PGR's handling of the
case, the Fox administration decided
to invite someone from abroad to perform an objective evaluation of what had
taken place done.The resulting report
criticized the flaws and omissions in the PGR investigation.[21]

The Fox administration has also actively addressed cases
before the IACHR, seeking friendly
settlements in several instances.For
example, in the case of Alejandro
Ortiz Ramrez, who was given a
forty-year prison sentence after he was tortured to confess that he had
committed murder, in December 2004
the Mexican government signed a friendly settlement and publicly recognized his
innocence.[22]Also,
in March 2006, the Fox
administration signed a friendly settlement with Paulina Ramrez, who, in
1999, at age 13, had been denied access to a legal abortion in her
home-state of Baja California Norte.In
the settlement, the Mexican
government recognized that Ramrez's rights had been infringed, and agreed to push for reparations.[23]

In addition to its engagement with international human
rights bodies, the Fox administration
has been far more receptive to scrutiny from NGOs than any previous Mexican
administration.In December 2001, it eliminated the 1998 travel restrictions that
the previous government had used to regulate foreign advocates' access to the
country.As a result, international rights advocates could travel to and
around Mexico
more easily, and they were no longer
expelled from the country because of their work.

In general, the
Fox administration has demonstrated much greater willingness to receive criticism
and discuss recommendations by international actors.This receptive attitude,
combined with its active promotion of human rights abroad,
has encouraged international monitors to take Mexico up on the general invitation
to visit the country.The number of
visits by international human rights monitors to Mexico has dramatically increased
since Fox took office.Prior to 2000, only four monitors had conducted missions to Mexico.During the Fox presidency, the country received fourteen such missions from representatives
of the United Nations and the OAS[24]

Harmonization Efforts

Mexico's
new foreign policy has generated new tools for promoting rights in Mexico.These include the country's new treaty
obligations, as well as the
extensive recommendations from international monitors regarding how to fulfill
them.But for these obligations and
recommendations to have an impact,
they must be made part of the daily activities of the state institutions that
have the authority to carry them out.The Fox administration has had only limited success in making that
happen.

Ratification of International Human Rights Treaties

Before the Fox administration,
the Mexican Congress had already ratified some important human rights treaties, such as the International Covenant on Civil and
Political Rights, the American
Convention on Human Rights, and the
Convention on the Rights of the Child.The Fox administration has made a concerted effort to increase the
number of international instruments that impose human rights obligations on the
state.Since 2000,Mexico
has ratified fourteen international treaties that protect human rights since.[25]These include the Convention on the
Non-Applicability of Statutory Limitations to War Crimes and Crimes Against
Humanity, which had been signed in
1969 and was ratified in 2002; the Rome Statute of the International Criminal
Court, signed in September 2000 but
not ratified until 2005; and the Inter-American Convention on Forced
Disappearance of Persons, signed in
May 2001 and ratified in 2002.[26]

Unfortunately,
the Fox administration has itself undercut the value of these ratifications by
allowing the Senate to attach interpretative declarations and reservations that
limit the treaties' impact in Mexico.For example,
when Mexico ratified the Convention on the Non-Applicability of Statutory
Limitations to War Crimes and Crimes Against Humanity and the Inter-American
Convention on the Forced Disappearance of Persons,
it included "interpretative declarations" to the effect that the conventions
would only apply to acts committed after the treaties entered into force (i.e., after 2002).In practice,
as we describe in detail in Chapter 4,
the declarations have increased the difficulty of using these instruments to
promote accountability for past human rights abuses in Mexico.Similarly,
when Mexico signed the Inter-American Convention on the Forced Disappearance of
Persons, it attached a reservation
to the effect that members of the armed forces charged with forced
disappearances would be tried in military courts for illicit acts they commit
while on duty.This reservation
contradicts the purpose of the treaty and violates international law, as international bodies have repeatedly held that
military jurisdiction may never apply to cases involving human rights
violations.[27]

Reforming Domestic Law

The Fox administration has promoted a variety of legislative
efforts aimed at bringing Mexico's
domestic laws into harmony with its international obligations.In some cases,
it has helped to ensure the adoption of new laws that refer explicitly to
international human rights norms.For
example, the 2003 Federal Law to
Prevent and Eliminate Discrimination (Ley
Federal para Prevenir y Eliminar la Discriminacin) specifically
establishes that the law must be interpreted in light of international norms
and recommendations issued by international bodies.[28]Similarly,
the Federal Law on Transparency and Access to Official Information (Ley Federal de Transparencia y Acceso a la
Informacin Pblica Gubernamental),
which is discussed in detail in Chapter 3,
created mechanisms to enforce the right of access to official information-an
internationally recognized human right-within the executive, and mandated that other federal agencies had to
adopt their own implementing regulations.In some cases, the new law
has mirrored the administration's efforts to promote international human rights
norms abroad.For instance,Mexico
adopted the 2005 General Law on Disabled People (Ley General de Personas con Discapacidad) at the same time it was
promoting a draft United Nations convention on this same issue.

Unfortunately,
the potential impact of some these new laws has been limited by the failure to establish
effective implementing mechanisms.For
example, the National Council to
Prevent Discrimination (Consejo Nacional
para Prevenir la Discriminacin) has limited power to implement the law to
prevent discrimination since it may not issue recommendations or impose
sanctions.Furthermore, its limited budget prevents it from having a real, nation-wide impact.Similarly,
the Federal Institute on Access to Information (Instituto Federal de Acceso a la Informacin Pblica) has promoted
an impressive increase in transparency and access to information within the
executive, but,
as we describe in Chapter 3, it
still faces tremendous challenges.

And if Mexico
has managed to incorporate international norms into new legislation, it has largely failed to incorporate them into
existing laws.[29]One of the most ambitious efforts to make
Mexican law consistent with international standards has been the proposed
overhaul of the justice system,
discussed in Chapter 5.The proposal, which President Fox presented in March 2004, aims to develop a new,
oral, adversarial justice system at
the federal level.It contains specific
measures designed to eradicate the existence of widespread human rights abuses
in Mexico, such as the use of torture to obtain confessions and
the excessive use of preventive detention.Though the Senate approved several pieces of the reform package in 2005, it left the most crucial ones pending.Even those that have been adopted by the
Senate must be ratified by the House of Representatives and state legislatures
before they can become binding.

Embedding International Norms in the Constitution

Another approach to incorporating international human rights
norms into domestic law would be to make the country's treaty obligations
directly applicable and enforceable within routine legal proceedings. And, indeed,
the Mexican Supreme Court held in November 1999 that the provisions of treaties
ratified by Mexico
not only are directly applicable,
but take precedence over federal and state statutory law (but not over
provisions of the Constitution).[30]Yet this ruling did not rise to the level of
binding jurisprudence (under the Mexican system,
four more similar rulings are required for it to acquire that status) and the
notion of direct applicability of treaty obligations remains a controversial
and largely unused concept in Mexico.

In 2002, the Fox
administration created the Sub-Commission on Harmonization(Subcomisin de Armonizacin)
to foster discussion among government and civil society representatives on how
to address this ambiguity and promote the incorporation into domestic law of
the human rights norms enshrined in treaties ratified by Mexico.[31]The solution the group came up with was a constitutional
amendment that would essentially grant these norms the same status as
constitutional law, making them
directly enforceable by allowing victims of violations to file injunctions (juicios de amparo) in federal
courts.The proposal would also allow
federal authorities to assert jurisdiction over cases related to human rights
abuses that would otherwise be tried by state courts.[32]

It was a bold proposal.Unfortunately, however, the administration itself chose to gut it just
before sending it to Congress (and without consulting the civil society
representatives who had been involved in the process of developing it), by including language that limited its scope to
those human rights obligations that are already recognized in the Mexican Constitution.[33]And,
even this dramatically weakened version of the proposal has gotten nowhere in
Congress and been effectively shelved.

Congress did pass a more specific constitutional amendment, which accompanied this proposal, eliminating the death penalty in Mexico.Since the amendment's passage in June 2005, the military justice system and some state
legislatures have also abolished the death penalty.[34]

The National Human Rights Program

One concrete method for ensuring that these harmonization
efforts would continue was the creation in December 2004 of the National Human
Rights Program (Programa Nacional de
Derechos Humanos, PNDH), which grew out of the diagnosis prepared by the
UNHCHR.The purpose of the PNDH was to
"establish the basis of a government public policy on human rights."[35]As a result of the PNDH,
each federal government agency created its own liaison office to implement the
PNDH.[36]

It is difficult to measure the impact of this initiative
because implementing a government public policy on human rights will take much
longer than one year.But it is possible
to identify cases in which government agencies that had already begun to adopt
measures to protect human rights continued to do so as part of the PNDH's plan
of action.A good example of such
harmonization is offered by the activities carried forward by the Attorney
General's Office to combat torture,
which began prior to the PNDH but were incorporated as part of the new
government policy.In August 2003, this office adopted a medical and psychological
evaluation system that implements the Istanbul Protocol.[37]After the creation of this mechanism at the
federal level, the PGR signed
agreements with various state attorney general offices to promote the
implementation of this mechanism at the state level.As of November 2005,
it had done so with four states.[38]

Unfortunately,
however, the implementation of this
mechanism has had a limited impact to date with respect to corroborating
torture allegations or sanctioning public officials responsible for
tortureAs we suggest in Chapter 5, one reason for this limited impact may be the fact
that the protocol has been applied to cases in which the torture took place
months or years earlier, and there
was no longer physical evidence of the abuse.Also, as Mexican NGOs have
pointed out, another problem appears
to be the failure to ensure that the people applying the protocol are
independent experts.[39]

The Fox administration sought to increase the legitimacy of
the proposed measures by inviting civil society participation in the design of
the PNDH.As with the discussion on
drafting a constitutional reform,
the government promoted, through the
Interior Ministry, the creation of
spaces for dialogue with civil society organizations about the most appropriate
mechanisms to implement the diagnosis.These opportunities for dialogue,
while limited, represented a marked
improvement over the secrecy with which government policy had been crafted in
the old regime.[40]Yet some key NGOs have lamented the fact that
the government failed to respect the initial terms set for the consultations
and that the officials who participated in the meetings did not have the power
to make any decisions.Furthermore, the NGOs have expressed concern that very few
civil society organizations from outside Mexico
City were given an opportunity to participate in the
process.[41]

Mechanisms to Ensure Continuity

The Fox administration has adopted some mechanisms aimed
directly at ensuring effective implementation of the PNDH and of the other
parallel initiatives that could bolster the incorporation of a human rights
perspective in the Mexican government's work.However, these are very
recent initiatives and results are just beginning to become apparent.

To ensure continuity of the measures proposed in the PNDH, the executive created a Follow-Up and Evaluation
Committee (Comit Coordinador de
Seguimiento y Evaluacin) at the end of 2005.Composed of government and civil society
representatives, as well as a
representative of the United Nations,
it has a specific mandate to create indicators to measure the impact of the
PNDH and to propose reforms to improve it.[42]The main problem with this initiative is that
it is tied to the PNDH, which
officially ends with the Fox administration.Therefore, it could be
abandoned by the next administration.

In December 10,
2004, the Interior Ministry and the
governments of all the states in Mexico signed a National Agreement
on Human Rights (Acuerdo Nacional de
Derechos Humanos).This agreement
expresses their commitment to promoting and defending human rights, and is a first step towards bilateral agreements
between the federal government and states to promote compliance with various
PNDH recommendations at the state level.[43]

There have also been other parallel initiatives that aim at
increasing government adherence to human rights norms.One is the passage,
in 2003, of the Law on Professional
Career Service in the Federal Public Administration (Ley del
Servicio Profesional de Carrera en la Administracin Pblica Federal).Based on this law,
the Interior Ministry and the Ministry of Public Administration (Secretara de la Funcin Pblica)created a capacity-building program on
human rights.[44]The executive also created a Manual to
Introduce a Human Rights Perspective in Public Policy (Manual para Introducir la Perspectiva de Derechos Humanos en las
Polticas Pblicas), which is
mandatory for all federal government agencies.And, as part of the
government's National Program on Education 2001-2006,
the executive created an Educational Program on Human Rights (Programa de Educacin en Derechos Humanos)
with the purpose of including human rights in various educational textbooks for
primary and secondary schools.[45]Finally,
in 2006, Mexican universities issued
a Universities' Declaration in Favor of a Human Rights Culture with the purpose
of including a human rights perspective in higher education.[46]

Under President Fox's administration,
the government has also set up some permanent structures-thematic commissions
within the executive branch-that do not depend exclusively on the will of the
president.For example, the government transformed the National Indigenous
Institute (Instituto Nacional Indigenista, INI) into the National Commission for the
Development of Indigenous Populations (Comisin
Nacional para el Desarrollo de los Pueblos Indgenas,
CDI).Unlike the INI, the new CDI was created with the purpose of
influencing public policy.While it
continues to work on certain INI projects aimed at assisting indigenous
populations, the CDI also works with
all federal government agencies to ensure that various public policies respect
indigenous rights and cultural diversity.[47]Other institutions also seek to affect the
way the federal government addresses specific issues across the board, such as non-discrimination and women's rights.[48]

Recommendations

Mexico's
new approach to human rights in its foreign policy represents an important
break from the past.Yet this approach
is neither enshrined in law nor the product of a formal political
consensus.It could be abandoned by the
next administration as easily as it was launched by the present one.Should that happen,Mexico
would greatly diminish the contribution that international scrutiny can make in
exposing the country's human rights problems and generating pressure for
much-needed reform.

The next administration should pursue a foreign policy that
encourages international scrutiny of human rights issues in Mexico.

1)Continue the policy of openness
to international scrutiny

The next administration's foreign policy should recognize
the universality of human rights values and reject the notion that promoting
national sovereignty is more important than protecting basic human rights.

Specifically, the
next administration should repudiate the use of the principle of
noninterference as an excuse to limit international scrutiny of human rights
issues. It should encourage and facilitate visits and inquiries by
international rights monitors, and
provide these monitors with as complete information as possible regarding human
rights practices.

2)Establish a permanent office of
the UNHCHR in Mexico

The next administration should ensure that the UNHCHR
continues to play a constructive role in promoting human rights in Mexico by signing a new agreement with the High
Commissioner to establish a permanent office in Mexico.

The UNHCHR currently carries out several valuable projects
in Mexico.Yet,
given the lack of a permanent office,
it has limited ability to engage in long term efforts to improve human rights
practices in the country.A permanent
UNHCHR presence would help to ensure the continuity of the efforts currently
underway and make it more difficult for other administrations to abandon them
or reverse the country's current openness to international scrutiny of human
rights issues.

3)Prioritize the implementation of
measures proposed in the National Human Rights Program (PNDH)

The next administration should instruct the agencies within
the executive branch to implement the PNDH.The administration should also establish an interdisciplinary committee
composed of representatives from government institutions,
Mexican civil society, and
international monitoring bodies, to
perform a careful evaluation of the PNDH.The committee's mandate should be to update and strengthen the PNDH
where necessary and create indicators to measure the state's progress in
meeting its goals.

It is crucial that the Mexican government ensure the
participation of a wide range of civil society representatives in this process
to enhance the quality and legitimacy of the resulting human rights policies.

III. Transparency: Ending the Culture of Official
Secrecy

If the 2000 election represented the decisive break with
decades of one-party rule in Mexico,
the next major step in the country's transition to democracy came two years
later with the passage of the Law on Transparency and Access to Official
Information.While the election of an
opposition candidate confirmed that Mexico had finally changed the way it
selected its leaders, the new
"transparency law" showed that these leaders were ready to change the way the
country was governed-at least in one key respect.

During the decades of one-party rule,
a culture of secrecy had prevailed in virtually all areas of government. The
problem was most acute during moments of national crisis,
such as the 1985 earthquake or the 1994 economic meltdown,
when government institutions systematically withheld the information that its
citizens needed to respond and recover.But it also manifested itself in more mundane matters, as ordinary Mexicans were routinely denied access
to the most basic information regarding the institutions and even the rules
that governed their daily lives.Perhaps
most importantly for the stunted quality of the country's democratic process, journalists were unable to obtain the information
that was essential for reporting on government policies and programs.

For years this culture of secrecy was a principal obstacle
to the promotion of human rights in Mexico.In addition to undermining the basic right of
its citizens to freedom of information,
the lack of transparency also undermined the ability of civil society actors
and even well-intentioned government officials to confront an array of abusive
practices by the state.Moreover, it prevented the victims of grave violations and
their relatives from obtaining the information they needed to seek redress for
the abuses they had suffered.

The 2002 transparency law dealt a major blow to this culture
of secrecy.It established a "principle
of publicity" that essentially reversed the state's traditional approach to the
disclosure of information.Whereas in
the past disclosure was the exception,
under the new law it would be the rule.The law also established a powerful mechanism-the Federal Institute for
Access to Official Information (IFAI)-to enforce this principle within the
executive branch and mandated the creation of comparable mechanisms within the
other branches.As a consequence, for the first time,Mexico
opened the government to public scrutiny.

The transparency law was the single most unambiguous
achievement in the area of human rights during the Fox presidency.The credit for making it happen is shared by
many-from President Fox, who signed
the law, to the legislators from all
three major parties who voted to pass it,
and, perhaps most importantly, to a diverse array of civil society actors who
conceived the law and convinced Mexico's political leaders that it was
necessary.

The potential impact of the transparency law received a huge
boost by the 2002 declassification of millions of secret documents from
government archives, which President
Fox had authorized the previous year when he established the Special
Prosecutor's Office to investigate past human rights abuses.The declassification amounted to a
retroactive application of the new publicity principle,
giving journalists, investigators, and ordinary citizens access to government
information that had been denied to them for decades,
and providing them with written evidence including extensive documentation of
past human rights violations.

Both the transparency law and the document declassification
had important ramifications for human rights monitoring in Mexico.They have allowed Mexican society to have
access to written evidence on past human rights abuses that corroborated the
claims of human rights victims and their families,
as well as to information that was previously unknown.

But if the transparency law has transformed Mexico's
approach to managing information,
there are good reasons to worry that the culture of secrecy will reassert
itself in the future:

The
IFAI has not been granted autonomy from the executive branch and remains
vulnerable to political interference;

The
IFAI has encountered reluctance on the part of several key government
entities to full compliance with the transparency law-a problem that could
worsen should the next administration choose not to prioritize
transparency;

The
progress made in promoting transparency within the executive branch has
not been matched in the other branches of government nor in the autonomous
state institutions; and

The
transparency law does not apply to political parties,
which receive substantial public funding and play a decisive role in
determining who can run for office and what laws get passed by Congress.

Similarly, the
value of the millions of documents declassified by President Fox has been
severely undercut by a variety of obstacles faced by people conducting research
in the National Archive.These include
missing documents, the deficient
management of the National Archive,
the lack of adequate indexes, and
the overly broad application of privacy protections.

In sum, the
historic advances that Mexico
has made in the area of transparency remain quite precarious even today.Whether these advances become permanent will
depend largely upon the policies and priorities of the next president.It is crucial that the next administration
commit itself to removing the obstacles that threaten the future success of the
transparency law.

Background

Mexico
took its first step toward ending its culture of secrecy when it reformed its Constitution
in 1977 to provide that "the right of access to information shall be guaranteed
by the State."[49]However,
this reform had little impact in practice.Attempts to exercise the new constitutional right were generally
unsuccessful.[50] And lack
of transparency remained the norm in management of government affairs.[51]

The one area where real progress had been made in promoting
transparency was in the management of national elections.After the debacle of the 1988 presidential
contest, when the PRI government
appeared to have stolen victory from the challenger,
democracy advocates organized themselves to push for transparency in
elections.Their advocacy led to the
creation in 1990 of the Federal Electoral Institute (IFE),
which began monitoring campaign spending and media coverage prior to the 1994
presidential election.Although the 1994
election was cleaner than the previous one,
election observers still witnessed thousands of irregularities.The winner,
Ernesto Zedillo, himself
acknowledged that his own election had been flawed and,
once in office, promoted a new
electoral reform. Passed in 1996, the reform granted Mexico one of the world's most
advanced balloting systems. In 1997 Mexicans elected a majority of opposition
members to Congress, and in 2000
they finally ended one-party control of the presidency.[52]

International Norms

The right to "seek,
receive, and impart" information is
recognized in the Universal Declaration of Human Rights,
the International Covenant on Civil and Political Rights (ICCPR), and the American Convention on Human Rights.[53]In Human Rights Watch's view this right
should be interpreted as generally entailing a right of access to official
information as well as information that is generally available.[54]

Although international human rights law does not explicitly
provide a right of access to official information,
there is growing international recognition that the right to seek, receive and impart information encompasses a
positive obligation of states to provide access to official information in a
timely and complete manner.Both
regional and international organizations have held that the right of access to
official information is a fundamental right of every individual.[55]In the Americas,
the Inter-American Commission on Human Rights (IACHR) interpreted Article 13 of
the American Convention (on the right to freedom of expression) to include the
right of access to official information.[56]Moreover,
it is internationally recognized that the right of access to official
information is crucial to ensure democratic control of public entities and to
promote accountability within the government.[57]

The right of access to information is governed by the
"principle of maximum disclosure."[58]
In other words, the government is
always presumed to be under an obligation to disclose information.This presumption can only be overridden under
circumstances, clearly defined by
law, in which the release of
information could undermine the rights of others or the protection of national
security, public order, or public health or morals.[59]

The Transparency Law

Bringing about Reform

Mexico's transparency law was the product of a political
consensus forged among a wide range of political actors,
including President Fox, his PAN
party, and members of the opposition
parties in Congress, and brought
about through an extensive campaign by members of Mexican civil society.[60]

President Fox had mentioned access to information and transparency
during his presidential campaign,
and, early in 2001, his administration began drafting a law on access
to official information.[61] After a
draft was leaked to the public, an
array of civil society actors began to evaluate and critique the governmental
initiative.[62]

Then, in May 2001, some academics,
activists, media owners and
journalists created a group, later
called the "Oaxaca Group," to
discuss access to information.[63]This group produced the Oaxaca Declaration, which lists the necessary elements of legislation
on access to information.[64]The group then drafted a legislative proposal
and lobbied members from all opposition parties to introduce their proposal in
Congress.[65]

A special congressional working group,
composed of members of Congress from the three major parties, representatives of the executive, and members of the Oaxaca Group, evaluated the proposals and arrived at a consensus
on most of the issues that were being discussed. The result was the Federal Law
on Transparency and Access to Official Information (Ley Federal de Transparencia y Acceso a la Informacin Pblica
Gubernamental), or "transparency
law," signed into law in June
2002.

The New Law

Normative Structure

The transparency law establishes that all information in the
hands of the government is of a public nature.Accordingly, it requires
public officials and agencies to apply the "principle of maximum disclosure"
when it comes to managing official information: they must presume that the
information is public, and only restrict
it if it meets certain criteria.[66]

The law establishes a list of transparency obligations, requiring every government entity to post on its
Web site basic information about its structure,
personnel, budget, and operating procedures.The law also creates mechanisms for the
executive to respond to information requests,
and orders other entities subject to the law to create their own mechanisms for
this purpose as well.[67]

The transparency law establishes limits on access to
official information by defining what constitutes privileged and confidential
information.According to the law, information may be considered "privileged" if its
release could endanger national security; undermine international negotiations
or relations; damage the financial,
economic or monetary stability of the country; risk the life, health or safety of any person; or seriously
damage the verification of law fulfillment,
crime prevention or persecution, law
enforcement, tax revenue, migration control,
or the procedural strategies of judicial or administrative processes (as long
as the resolutions have not been decreed).Access to "privileged" information may be limited for up to twelve
years.[68]

Information is "confidential" if the person who provided it
to a government entity specifically indicated that it should remain so.[69]It is also "confidential" if it constitutes
"personal data," which the law
defines to include:

all information concerning an individual, identified or identifiable,
including their ethnic or racial origin,
or related to their physical, moral
or emotional characteristics, their
personal and family life, residence, telephone number,
patrimony, ideology, political opinions,
religious or philosophical beliefs or convictions,
physical or mental health, sexual preferences, or any other similar preferences that could have
an impact on their intimacy.[70]

Under the transparency law,
"personal data" about an individual can only be disclosed if that individual
authorizes the disclosure.The law also
establishes the rights of individuals to obtain access to their own "personal
data" and to require that government entities correct any incorrect data in
their possession.[71]

The transparency
law establishes one important exception for information on human rights cases. Specifically,
it provides that "in case of severe violation of fundamental rights or crimes
against humanity the information found in the investigations may not be deemed
privileged."[72]

Mechanisms for Implementation

Given that the executive had been the center of secrecy for
decades, the participants in the
negotiations over the law agreed to focus on "opening" the executive first.[73]Thus,
the transparency law addresses in detail the mechanisms by which citizens can
obtain information held by the executive.[74]

The transparency law created the Federal Institute for
Access to Official Information (IFAI) to promote and regulate access to
information within the executive branch,
as well as liaison units within each executive agency to respond to specific
information requests.

The law also created a system for soliciting access to
information.Any person, including non-Mexicans,
may request the desired information by visiting the IFAI Service Center, where he or she will be assisted on how to request
information, by visiting the liaison
unit in the agency where the desired information should be available, or by accessing the System for Information
Requests (Sistema de Solicitudes de
Informacin, SISI) on the
Internet.[75]In the event that the information request is
denied or if the person requesting it is dissatisfied with the answer, he or she may appeal that decision before the IFAI
or the appropriate liaison unit (which will send the case to the IFAI).If the person wishes to appeal the IFAI's
decision, he or she may then take
the case before the courts.

The transparency law did not provide such detailed rules and
mechanisms for the other major government entities-including the judiciary, Congress,
the National Human Rights Commission (Comisin
Nacional de Derechos Humanos,
CNDH) and the Federal Electoral Institute (Instituto
Federal Electoral, IFE)-but
rather left it to each to develop its own.[76]As we show in detail below, the resulting regulations and mechanisms are of
varied quality and have had different degrees of success in opening these
government institutions.

One serious shortcoming of all implementing regulations is
that they grant reviewing authority to essentially the same people who must
provide information.In the judiciary, for example,
the authority lies with a special commission appointed by the Judicial Council
(a body made up of lawyers, judges, and Supreme Court justices),
except for cases involving information in the possession of the Supreme Court, in which case it is a commission formed by the
Court itself.In the Congress, it is commissions made up of legislators in each
house.As for autonomous agencies, in the IFE, there is a commission made of electoral counselors, and in the CNDH,
the reviews are conducted by the director of one of the commissions'
investigative areas.Given that the
members of the different review panels are members of the same entity that must
provide information, it can be
difficult for the petitioners to obtain an impartial hearing.

In theory, it is
possible to appeal decisions to withhold information before the courts, since Mexican law makes it possible to seek an
injunction (amparo) against any act
by the federal government (except for acts by the Supreme Court).[77]But,
this procedure is prohibitively long,
expensive, and burdensome, and therefore not a viable option for most
Mexicans.(A second appeal option exists
in cases involving decisions by the IFE, which may be appealed before the Federal Electoral
Tribunal (Tribunal Electoral del Poder
Judicial de la Federacin,
TRIFE).)[78]

Results: Progress and Obstacles

The Executive

Positive Impact

Within the executive branch,
the transparency law has had a dramatic impact on access to official
information in a wide range of areas.

Compliance with the law's transparency obligations has
improved steadily since it went into effect.According to evaluations conducted by the IFAI,
compliance has increased from 32 percent in 2003,
to 62 percent in 2004, and to over
90 percent in 2005.[79]During this time,
agencies within the executive have received over one-hundred thousand
information requests and responded to almost 90 percent of them.[80]

The IFAI has played a crucial role in pressing for greater
transparency within the executive.It
has received an increasing number of complaints against federal agencies that
denied access to information requests-from over 600 in 2003 to over 2,300 in 2005.[81]In nearly three-quarters of these cases, the IFAI has found in favor of the individual or
organization filing the complaint and instructed the government entity to
provide the requested information.[82]

The IFAI has successfully brought about the disclosure of a
wide array of information previously inaccessible to the Mexican public.For example,
it ordered the National Commission on Nuclear Security (Comisin Nacional de Seguridad Nuclear y Salvaguardias) to provide
information on the enterprise that provided nuclear fuel used in a nuclear
facility, as well as its country of
origin.It required the National Commission
on Social Security (Comisin Nacional del
Sistema de Ahorro para el Retiro) to provide an individual information on
his own social security accounts.It compelled
the National Council on Science and Technology (Consejo Nacional de Ciencias y Tecnologa) to inform how fellowships
are assigned.And it obliged the
Ministry of Foreign Affairs (Secretara
de Relaciones Exteriores, SRE)
to inform someone who did not pass the selection process to be part of the
Mexican foreign service the results she and others obtained on the exam.[83]

As a result of the transparency law,
Mexican society has obtained unprecedented access to information necessary to
monitor government institutions and expose corruption. According to the staff
of the liaison unit within the Ministry of Public Administration (Secretara de Funcin Pblica, SFP),
for example, the obligation to
publish vacancies and the number of employees and their salaries has made it
easier to identify "aviadores"-government
employees who do not actually work but got paid every month.The law has also made it easier to detect
corruption in the granting of concessions and licenses by the public
administration.[84]

Information obtained through the IFAI has also been useful
in unveiling corruption scandals related to the inappropriate use of public
funds.For example,
a Mexican human rights organization,
FUNDAR, was able to document the
misallocation of 200 million pesos (approximately U.S.$19 million) in the
federal budget earmarked to combat and prevent HIV/AIDS. The NGO submitted more than two hundred
information requests to various federal agencies,
including the Ministry of Finance and Public Credit and the Department of
Health, to monitor how the extra
funds were actually spent.The
information they obtained revealed that the Department of Health had
distributed the budget increase among hospitals that had budget crises and did
not necessarily have experience in working with HIV/AIDS patients.Furthermore,
they found that three out of seven of these hospitals had spent the entire
extra allocation on "general services,"
including security, cleaning
products, and banking services.[85]Since the Ministry of Finance and Public
Credit labels money as spent the moment it is transferred,
they considered the money to have been spent on HIV/AIDS because the funds had
been labeled as such.Given this
scenario, the information obtained
through information requests on how the money was actually spent helped
publicize that the extra budget for HIV/AIDS was not getting to patients who
desperately needed it, and it
demonstrated the flaws in a system that allows such lack of accountability.

Another example of the misuse of public funds was the
"Provida scandal."In January 2003, thirty million pesos (almost U.S.$3 million) of
the budget for HIV/AIDS were allocated by the government to the National
Pro-Life Committee (Comit Nacional
Provida), a conservative NGO
that would build ten Centers for Assistance to Women (Centrosde Ayuda para la
Mujer).With the purpose of monitoring
how the money had been spent, six
NGOs requested a copy of the agreement by which the Department of Health
granted Provida the funds, and the
periodic reports presented by Provida on how the money had been spent.A private company that audited the files
concluded that the documentation showed that 90 percent of the funds were
irregularly spent.For example, over 95 percent of the funds included in the
category "Help for Women" in the budget was spent in hiring a company that
organized parties, which had as
directors the same people that were directors of Provida,
and there were receipts that demonstrated that part of the money destined to
combat HIV/AIDS was used to purchase Cartier pens,
clothes for men and women, and
women's underwear.[86]

Remaining Obstacles

A key to the effectiveness of the transparency law is the
ability of the IFAI to operate independently of political pressure-especially
if that pressure comes from the institutions in possession of information that
should be public.The IFAI has been able
to operate without undue interference thus far.Yet it remains vulnerable to being undermined or even sabotaged by
future administrations.

One source of vulnerability is the method of selection of
the commissioners who run the IFAI.Under
the current structure, the president
has sole authority to appoint IFAI commissioners.While the Senate may "object" to the
president's selections, it cannot
actually block any appointment.Thus, a president who is not committed to transparency
could appoint commissioners who would be unwilling or unable to apply the law
effectively.[87]

Another source of vulnerability is the budget.Currently,
the IFAI proposes its budget to the president,
who incorporates it into the executive's budget and sends it to Congress for
approval.So far,
the IFAI has received an annual budget of over 200 million pesos (U.S.$20
million) every year since its creation.[88]However,
an unsympathetic president (or Congress) could decrease this budget in the
future and thereby undermine the IFAI's ability to carry out its work.

A final source of vulnerability is the fact that the IFAI
has no authority to enforce its decisions or sanction officials who refuse to
comply with them.While government
entities have generally complied with its decisions so far, when they have not,
the information petitioners have had to turn to the courts to force compliance.[89]In one case,
for example, a former Mexican consul
in the United States sought
certified copies of documents from the Foreign Ministry and Attorney General's
Office regarding the case of a Mexican fugitive in Texas. (The consul already had unofficial
copies in his possession).After both
entities denied him the certified copies,
he appealed to the IFAI, which ruled
in his favor.Yet still the entities
refused to provide the copies.Consequently he took his case to court and won court orders for the
entities to provide the copies.[90]

When it comes to sanctioning officials who fail to comply
with its instructions, the IFAI must
rely on the SFP.Although IFAI officials
report that the SFP has been supportive during the Fox administration, there remains a structural deficiency in the
system that could undermine SFP's ability to sanction public officials for
failing to comply with IFAI instructions in the future.[91]Cases are decided by an "internal control
organ" (organo interno de control) in
each executive agency.Formally, these organs depend on the SFP, but under the transparency law, the head of the internal control organ is
simultaneously a member of the agency's Information Committee, which is responsible for reviewing access to
information decisions adopted by the liaison unit in each office.Consequently,
in practice, the law is asking this
person to potentially review his or her own decisions or those of his or her
colleagues.

While IFAI officials insist that these vulnerabilities have
not been exploited so far, they also
report encountering growing resistance among certain institutions to comply
with information requests-including,
in particular, the Attorney
General's Office and the Ministry of Finance and Public Credit.[92]Another institution that has been resistant
to collaborate with the IFAI has been the Secretary of Defense (Secretara de Defensa Nacional, SEDENA).For example, in May 2004 an
individual asked SEDENA for information on how many cases of human rights
violations by the military were pending before international bodies.In June 2004 SEDENA answered that there were
no international proceedings against Mexican military officials.The answer consisted of one word: "none" (ninguno).The person who had requested information
presented an appeal before the IFAI because she knew of at least four cases
that were pending before the IACHR. The IFAI decided to reverse SEDENA's
decision and ordered its Information Committee to grant access to the
information requested.[93]Even though the IFAI's resolution held that
some information on cases pending before the IACHR is available on the Internet
and can therefore not be denied by SEDENA,
in its response of October 2004,
SEDENA only referred to two cases.

Another example of SEDENA's resistance to providing
information has been documented by the Atalaya Program of ITAMUniversity.In 2003,
the Atalaya Program sought information on cases in which the CNDH had signed
agreements with federal entities regarding their responsibility in human rights
cases.After the CNDH denied access to
its files, the Atalaya Program
requested the information from twenty-four federal government agencies, including SEDENA.The Atalaya researchers obtained information from some of them, either directly or after an appeal before the IFAI, but not from SEDENA.[94]In December 2003,
the Atalaya Program requested access to documentation on agreements between
SEDENA and the CNDH, and SEDENA
responded that the information should be requested from the CNDH.After an appeal,
the IFAI decided SEDENA should provide a "public version" of the requested
files.[95]Yet SEDENA still refused to provide access to
the files.Instead,
it only gave the Atalaya Program a document with basic information on five
cases.

The Judiciary

The transparency law and its implementing regulations issued
by the Supreme Court and the Judicial Council have increased transparency at
the top levels of the judiciary. Both
have complied with their transparency obligations by posting the required
information on their Web sites and by responding to most requests they have
received for specific information.[96]The Supreme Court has also promoted
transparency by broadcasting its public hearings on television and the
Internet.

Unfortunately,
however, a culture of secrecy
prevails, for the most part, in the work of Mexican judges.[97]
Part of the problem is that many judges still believe that access to
information and transparency belong to common law judicial systems and are
incompatible with Mexico's
legal system.[98]Another factor limiting access to judicial
information is that decisions to deny information are never subject to outside
review, but merely to review by the
commissions formed by the Supreme Court and the Judicial Council.

One crucial area where access to information remains a
problem within the judiciary involves obtaining copies of judicial
rulings.While some decisions are now
posted on the Internet, most are
not.[99]In some cases,
the decisions can be found in certain public libraries,
yet tracking them down can be a difficult and time-consuming process.As a result,
lawyers and even judges find it difficult to locate and learn from previous
rulings that might be relevant to their case.Consequently, there is a
greater risk that different courts-or even different judges within the same
court-will adopt contradictory decisions without even being aware that they are
doing it.

The judiciary also continues to deny public access to
information that is crucial for promoting greater accountability within the
justice sector by arguing that it must be considered privileged or confidential
information.For example, resumes and qualifications that lead to the
appointment of judges are not available to the public.This is problematic because public disclosure
of judges' qualifications and periodic evaluations could allow citizens to
better monitor the quality of decision makers in the judicial system and may
eventually increase their trust in the institution.

Other information that is unavailable is the number of cases
before each court, their average
duration, the number of accused who
are actually imprisoned, and the
percentage of decisions that end in a guilty verdict.This information is important for monitoring
the courts' productivity, as well as
to identify possible corruption cases.[100]

Congress

Mexico's
Congress has traditionally worked in a very obscure fashion, denying the public basic information about how
members of Congress voted, what was
being discussed, when meetings were
taking place, and the reasons for adopted
decisions.The transparency law has
helped to expose the legislative process to greater public scrutiny, in large measure by salvaging previous initiatives
that had proven to be largely ineffective in practice.

For example, both
houses of Congress had adopted systems of electronic voting to help curb the
problem of chronic absenteeism (the House of Representatives in 1998, and the Senate in 2001).Yet members of Congress continued to be
absent during debates and no one had access to their voting records.[101]

Another past initiative was a 1999 law in which Congress
imposed upon itself the obligation to televise its debates and provide the
public with greater information about its activities.[102]Yet the law did not come accompanied by any
mechanism of enforcement and consequently,
had little impact.[103]

The transparency law gave new life to both of these
initiatives.Unlike the previous
electronic voting initiatives, the
law includes more detailed transparency obligations about what information must
be provided to the public, including
the obligation to inform on the voting records.And unlike the 1999 law, the
new law and its implementing regulations create a mechanism for pressing the
Congress to fulfill its transparency obligations and provide information:
individuals and organizations can request information from a liaison unit (and
appeal its decisions before a reviewing panel) in each house.

Both houses of Congress have received thousands of
information requests and provided the requested information in a timely manner
in the vast majority of cases.[104]
Currently, both the Senate and the
House of Representatives also comply with transparency obligations imposed by
the transparency law by providing more information in their Web sites.[105]Nonetheless,
a recent analysis by the Mexican organization CIDE (Centro de Investigacin en Docencia Econmica)on transparency in both houses shows that the Senate only complies
with 45 percent of its transparency obligations and the House of
Representatives complies with 66 percent.[106]

One important area where Congress is not completely meeting
its transparency obligations involves its failure to publicize parliamentary
debates sufficiently in advance so as to allow civil society groups, journalists,
and members of the general public to monitor its handling of pending
legislation.[107]Consequently,
it is more difficult to generate meaningful public discussion of this
legislation at the critical moments when Congress is debating it.

Another area where transparency remains lacking-one not
covered by the law's transparency obligations-involves the fact that members of
Congress need not disclose any income they receive from other professional
activities.Consequently, it can be difficult or impossible to detect
potential conflict of interest that legislators might have when debating and
voting upon legislation affecting parties with whom they have financial
relationships.

Perhaps the most glaring shortcoming of the transparency law's
implementation in Congress is the failure to apply it to a central component of
legislative activity in Mexico-the
parliamentary groups.These groups, composed of the congressional representatives from
each political party, receive
substantial funds from Congress,
based on the proportion of representatives they have in each house.In 2005,
for example, the total budget for these
parliamentary groups in Congress was 755.5 million pesos (over U.S.$70
million).[108]When journalists from Reforma newspaper requested information on how the parliamentary
groups had spent this money,
Congress refused it on the grounds that it was the political parties (which are
not subject to the transparency law) that spent the money.[109]

The significance of this shortcoming is compounded by a
larger structural problem with the national legislature that undermines its
accountability to the Mexican public.Currently, members of
Congress are barred from immediate re-election.[110]As a result,
their future careers in public office depend not so much on how they perform in
the eyes of the voters who elected them,
but rather on whether their party will select them to run for other
offices.The result is a perverse
dynamic in which legislators are more accountable to their parties than to the
people they represent.

This arrangement undermines the purpose of the transparency
law in two ways.First, legislators have little incentive to provide
information to the public regarding their legislative activity, since they have no need of convincing voters that
they should be maintained in their posts.Secondly, it increases the
power and relevance of the parliamentary groups,
which are not subject to the transparency obligations established by the new
law.

Electoral Federal Institute (IFE)

The Electoral Federal Institute (IFE) has played a decisive
role in Mexico's
transition to democracy by ensuring free and fair elections.The transparency of the institution is
critically important to ensure electoral processes continue to produce
legitimate, democratic governments
in the future.

The transparency law and its implementing regulations have
served to reinforce steps that the IFE
had already been taking since 1998 to ensure transparency.For example,
the IFE had already established a series of
norms that provide for the disclosure of reports presented to the IFE by political parties, as well as information on political parties'
finances.[111]The transparency law strengthened these norms
by introducing a number of new features: uniformity,
minimum standards, and the
obligation to respond to individual requests for specific information.[112]

Today, the IFE complies with its
transparency obligations by posting critical information on its Web site, including its budget,
the contracts it has signed, and the
amount of public funds received by political parties.[113]
Thanks to the transparency obligations,
the IFE is now
providing information related to the electoral process in 2006 that had never
been made public before.This includes
information on the campaign expenses of the candidates and the number of
television spots each has bought.[114]The IFE has
responded to over a thousand requests for information,
mostly related to political parties and the office within the IFE that is in charge of monitoring their
expenditures.[115]

One of the IFE's
most important contributions has been to obtain information from political
parties, which are, as noted above,
not directly covered by the transparency law.In 2003, for example, a journalist requested that the IFE provide information on the income earned
by political parties' leaders.When the
IFE denied the request on the grounds that it did not have that information in
its files, the journalist appealed
to the Federal Electoral Tribunal (Tribunal
Electoral del Poder Judicial de la Federacin,
TRIFE), which has jurisdiction to
review any decision adopted by the IFE.The TRIFE ruled in the journalist's favor,
finding that his right to obtain information through the IFE related to the electoral process extended
to information regarding the use of public funds by political parties and
national political groups.[116]In a second case presented by the same
journalist, the TRIFE extended this
right to information to include the salaries earned by leaders of political
parties that had lost their party registration.[117]According to the journalist who presented
both cases, pressure on political
parties made them publicize this information on their Web sites even before the
TRIFE published its decisions.[118]

In an effort to fulfill its obligations under the
transparency law, the IFE produced a
self-evaluation in July 2004 in which it found that the institute's existing
legal framework did not sufficiently ensure access to information held by
political parties.The IFE
recognized that recent initiatives,
such as the IFE's
obligation to disseminate reports sent to it by political parties and the
recent TRIFE decisions, have
promoted greater transparency of political parties.Nevertheless,
the report recognized, these
advances would not be consolidated if they were not incorporated into a new
legal structure.[119]

As a consequence of this self-assessment, as well as the TRIFE rulings in the cases brought
by the journalist, in 2005, the IFE
issued new implementing regulations for the transparency law.These regulations created a mechanism by
which the IFE
may request information from political parties.[120]

However, the
effectiveness of this mechanism remains limited by the fact that the IFE has no power to
sanction political parties when they refuse to comply with information
requests.The only measure available in
these cases is to publicize the parties' lack of compliance.The threat of bad publicity could be a
powerful way of exerting pressure (as in the example above).However,
there is still no way of ensuring genuine and full compliance with
requests.

National Human Rights Commission (CNDH)

The CNDH, the
autonomous agency charged with "protecting,
observing, promoting, studying,
and divulging" human rights in Mexico, possesses a wealth of important and valuable
information on the rights practices of state institutions. Public access to
this information is crucial for several reasons.First,
it permits Mexican civil society to know about human rights abuses and to
monitor their elected officials' efforts to address them. Second, it helps policy analysts,
commentators, and ordinary voters to
evaluate public policies from a human rights standpoint.Finally,
public access to the CNDH's information allows Mexican society to monitor the
work of the CNDH itself.

Prior to the transparency law,
the CNDH was already one of the federal entities that disclosed the most
information to the public.And the
amount of information it discloses on the Internet has increased dramatically
since the federal law came into effect.[121]

Yet, even today, there are still limits to obtaining
information.As with other state entities, the CNDH has applied confidentiality norms in a
blanket fashion that limits access to basic information. For example, in one case,
while the IFAI explicitly said that all information related to salaries earned
by public officials had to be made public,
the CNDH considered that information regarding how much bonus salary was earned
by officials working within the CNDH at the National Human Rights Center (Centro Nacional de Derechos Humanos) was
confidential.[122]A second example refers to an information
request by an NGO that asked the CNDH for copies of the resumes of members of
the CNDH advisory committee.[123]Instead of providing a public version of the
resumes with the information that the CNDH considered "personal data" omitted, it denied access to the entire document.[124]

Furthermore,
public access to information regarding the work of the CNDH is limited in
significant ways.The CNDH considers all
cases that it has under review to be strictly confidential.[125]While it makes sense to limit public access
to sensitive information regarding ongoing investigations,
the CNDH applies this confidentiality rule in such an absolute fashion that
even the individuals who filed specific complaints are denied access to their
own files.For example, in 2005 the CNDH argued that "information in files
under study by the CNDH is privileged information" and denied a person access
to his own file (related to the violation of his right to health, right to information,
and reproductive rights as a consequence of forced sterilization).[126]

Obtaining information on concluded cases can also be
difficult.[127]The CNDH's implementing regulations of the
transparency law allow its staff to reserve information on concluded cases for
twelve years.[128]Complete information is only available on
recommendations, but on average, between 2003 and 2005,
these constitute less than 1 percent of the all concluded cases.[129]Many more cases are resolved through
settlements between the CNDH and the state agency in which the agency accepts
its responsibility.

When, in 2003,
the Atalaya Program of ITAMUniversity requested
access to the files of some concluded cases,
the CNDH denied it, arguing that the
Law on the CNDH and its implementing regulations of the transparency law
allowed it to consider such information privileged.[130]The Atalaya Program then presented an
injunction, challenging the
applicable regulations.A few weeks
before the Supreme Court was going to decide the appeal,
and two years after the initial request,
the CNDH allowed them to see the files that were mentioned in the
injunction.In February 2006, the Supreme Court decided the case was moot, and did not address whether the challenged laws
were constitutional.[131]

Although the CNDH does provide some aggregate data in its
annual report about the cases it handles,
this information tends to be broad and vague.Consequently, it is
impossible to know which human rights issues are brought to it and evaluated by
it, which government officials and
agencies are accused of violating human rights,
which cases it decides to close and why,
what happens to closed cases, and
how government authorities react to most complaints and decisions by the
CNDH.

State Level Institutions

The transparency law only applies to federal agencies.[132]Consequently,
each of Mexico's thirty-one
states and Mexico City
(Distrito Federal) must pass its own
transparency law that applies to state agencies.In November 2005,
twenty-seven states and Mexico City, as well as some municipalities, had transparency laws.[133]

But the positive impact of having all these laws has been
undermined by a variety of factors.Most
of the local laws and implementing mechanisms do not promote the same high
level of transparency established by the federal law. In some of the states, access to official information is discretionary
and supervising institutions are ineffective.[134]

In many of the states,
the transparency laws do not apply to all government entities.Some exempt the judicial branch entirely, for example,
or fail to establish effective implementing mechanisms within the
judiciary.As a consequence, most state judiciaries in Mexico remain opaque, and it is difficult to access information in their
possession.[135]Since most cases are judged in local
jurisdictions, the lack of access to
judicial information at the state level is extremely harmful for openness and
transparency in Mexico.

Another common problem is the cost of copies, which in most states is prohibitively high.While the IFAI has held that each copy should
not cost more than half a peso, less
than 10 percent of the states have the same limit.In extreme cases,
such as Michoacn, each copy costs
more than sixteen pesos.[136]In states where information is not given
electronically, the high cost of
copies will clearly limit access to information of those who cannot afford
those prices.

One reason for the weakness of the state laws is the lack of
an organized constituency that can promote the passage and effective
implementation of transparency legislation. As previously explained, the active participation of civil society groups
was decisive in the creation of the federal law. But active civil advocacy is
missing in many states.[137]

The IFAI has helped states confront some of these obstacles by
preparing a comparative analysis of state laws and by establishing an office to
foster collaborative activities with local governments.[138]Its most recent initiative is Information
System Mexico
(Sistema de Informacin Mxico, INFOMEX),
which is funded by the World Bank.INFOMEX is open to every state entity that decides to participate in it, and its purpose is to create a system to obtain
information from state governmental entities through the Internet.As of February 2005,
thirteen states and Mexico City
had signed agreements with IFAI to participate in it.[139]

The Release of Documents

In November 2001,
President Fox decided to "open" government archives that contained information
related to past human rights abuses.Specifically, the president
instructed the Interior Ministry to deposit in the National Archive all the
documents generated by two defunct agencies that had directed internal
surveillance and security operations-the Federal Security Directorate (Direccin Federal de Seguridad, DFS) and the General Directorate of Political and
Social Investigations (Direccin General
de Investigaciones Polticas y Sociales,
IPS).The president also instructed the
Interior Ministry to collect and deposit in the National Archive documents from
other government agencies, including
the Secretary of Defense (Secretara de
Defensa Nacional, SEDENA), that contained information related to Mexico's
"dirty war."[141]In June 2002 these instructions were carried
out and some eighty million documents were deposited in the National
Archive.

These files contain detailed information on human rights
violations committed during Mexico's
"dirty war" as well as insights into the command structure and modus operandi of the institutions that
carried them out.The availability of
this information removed the cloak of secrecy around the security apparatus and
provided Mexican society insight into the inner workings of the old
regime.Journalists were able to
investigate and obtain documentation on what had happened during those
years.Victims of human rights
violations and their families were able to review the files that government
agencies kept on them.It was finally
possible to document a part of Mexican history that had been, until then,
mostly based on testimonies.

Most of this information is held in the first two galleries
of the National Archive.The first
gallery contains documents of the DFS,
and the second gallery contains documents of the IPS.(The second gallery includes documents from
various offices that were subordinated to the Interior Ministry, including the DFS and SEDENA.)

Limits on Accessibility

Management of the Archive

To obtain material,
inquirers have to submit specific written requests to the archive staff listing
topics of interest, and then wait
for relevant documents to be retrieved.The determination of which documents are relevant is made by the archive
staff-usually the director of the particular collection,
who is ultimately responsible for which documents are shown to researchers.

The arrangement is particularly problematic in the case of
the DFS collection, where the
official in charge seems to have complete discretion with respect to what information
is provided to inquirers.These
decisions are not subject to any type of review.In 2003,
a researcher had asked for photographs taken at student demonstrations in 1968
and the director of the collection refused to give her the notes that were
stapled to each picture.When she
challenged him to show the legal basis for this refusal,
he responded only that it was his own decision.He then tore the photographs from the pages stapled to them, and only gave her the pictures.[142]The then director of the National Archive
acknowledged his authority to make such decisions,
claiming, according to one press
account, that he had "absolute
discretion" to determine which documents a researcher could see.[143]

Giving one person full discretion over what documents
researchers see is problematic for several reasons.One is that this person could become
vulnerable to pressure from people who might wish to prevent the release of
incriminating material.Another is that this person might be
tempted to abuse his or her authority to deny access to documents that should
be public.Currently, this risk is particularly pronounced in the case
of the DFS archives, given that the
director of the collection was himself a DFS employee for decades.

Overly Broad Application of Privacy Protections

The released documents in the National Archive contain a
great deal of information that contains "personal data" and therefore cannot be
released to the public.Unfortunately, there are no clear guidelines in place to help the
archive staff determine what information must remain confidential, and how to handle documents containing
confidential information.As a result, researchers are routinely denied access to
documents that either contain no personal data,
or which could easily be released in a public version,
from which the private information is excised.

For example, one
researcher was initially denied access to a file on the grounds that it
contained someone's personal data and therefore could only be released with the
authorization of that person's family.[144]After the researcher obtained the necessary
authorization, she was able to
access the file and found that,
while it did indeed contain some documents with personal data, it also contained documents that should have been
accessible.For example, one was a DFS document describing a confrontation
between members of an insurgent organization and government agents in which
five civilians had been killed and two detained.[145]The only information in the document that
could constitute personal data was the names of those killed and detained; the
archive staff could easily have prepared a public version of the document by
excising those names.[146]

However, care
also needs to be taken in the provision of a public version of a document that
contains private information. According
to researchers interviewed by Human Rights Watch,
when the National Archive did provide a public version of files, there was so much information eliminated from the
text that it became useless for their research.[147]

Lack of Indexes

Another major obstacle to accessing documents in the
National Archive is that more than 50 percent of the collections in the
archives is not indexed or catalogued.As one experienced researcher put it,
releasing the files without providing an index is "almost like not making them
accessible at all."[148]

When investigators are researching human rights issues in
the two relevant galleries of the National Archive,
they have no way of knowing where to look for information relevant to their
research-or of knowing, for that
matter, whether the archive staff is
providing all the information that it should.The first gallery has a catalogue,
but it is not entirely available to the public,
and most of the information in the second gallery is not even indexed.[149]Consequently,
not even the archive staff knows what information can be found in at least 60
percent of the boxes in their charge.[150]

The impossibility of knowing what information is available
and how to find it has discouraged many inquirers from using the National
Archive for their research.One
journalist told Human Rights Watch,
for example, that he had spent two
weeks in the National Archive scouring through 1,500
to 2,000 files,
of which only 5 percent were useful for his research.The journalist was certain that if he had
been provided an adequate index, he
would have found the relevant documents in far less time.[151]

Missing Documents

Another worrying aspect of the declassified material is the
gaps that appear to exist in the documentation that has been turned over to the
National Archive.For example, one journalist found a series of documents in the
National Archive that refers to a ceremony that took place at Military Base
Number One on October 2, 1979.The ceremony was organized by the military
"in the memory of those that died in compliance of their duty on October 2, 1968,
in the TlatelolcoPlaza," and there was an order to invite members of the
"Olimpia Battalion" to the ceremony.There is no other reference in any other document to the existence of
the Olimpia Battalion.[152] There is
only one document from SEDENA that recognizes that there were nineteen military
officials injured, but there is no
reference to military officials who died during that incident.

Another example of a glaring gap in the archival material
involves the DFS reports on the National Committee for the Defense of
Disappeared, Persecuted, and Exiled Prisoners (Comit Nacional Pro Defensa de Presos Desaparecidos, Perseguidos y Exiliados),
which later became known as the Eureka Committee.Although the "dirty war,"
repression, and government
monitoring of civil organizations continued,
and the DFS files in the first gallery have information up to 1985, the DFS reports on this Committee mysteriously end
at the beginning of 1979.[153]

The
Power of the Special Prosecutor's Office to Reserve Information[154]

The Special Prosecutor's Office has the authority to
separate information that it is using for its investigations and prohibit
researchers from having access to it.There are currently three hundred files that may not be seen by the
general public.[155]

By setting aside information on investigations that have
already been concluded, the Special
Prosecutor's Office has made it harder for investigators to access information
that must be public.For example, a researcher recently tried to obtain information
from boxes in the National Archive on two "disappearance" cases (Ignacio Salas
Obregn and Jess Piedra Ibarra) in which the special prosecutor had already
concluded the investigations and had presented the cases before a judge.Yet the information remains reserved by the
Special Prosecutor's Office, and
therefore entirely inaccessible to the public.[156]

Applying the Transparency Law to the Archives

Since the National Archive is a federal agency, it is subject to the IFAI's supervision on
transparency matters.According to the
IFAI, since January 2005 the Archive
complies fully with its transparency obligations.[157]Yet several experienced researchers told
Human Rights Watch that the federal law has not,
in fact, contributed nearly as much
as it could to increasing access to information in the National Archive.[158]

Guidelines on archiving issued by the IFAI and the National
Archive have not led to the creation of a useful index of the documentation
held in the National Archive.And the
IFAI's interpretations of the transparency law have not been applied by the
National Archive staff.For instance, the transparency law provides that information
that is relevant for the investigation of gross human rights abuses or crimes
against humanity may not be classified as privileged information.The IFAI has interpreted this to mean that, in these cases,
not even the preliminary stages of a criminal investigation (averiguacin previa) may be considered
privileged information.[159]Yet,
as previously mentioned, archive
staff maintains information on human rights cases unavailable to the public, even after the Special Prosecutor's Office has
concluded its investigations.

Not only does the Archive staff classify some information as
privileged per request of the Special Prosecutor's Office,
but it also denies access to other information related to these issues.When a researcher argued that she should have
access to files in the Archive in order to research "disappearance" cases
during Mexico's "dirty war" because information on past human rights abuses may
not be considered privileged, the
Archive's director told her that only "competent authorities" could carry
forward such investigations.[160]Although the director offered to consult with
the IFAI as to whether this was the proper interpretation of the transparency law, the researcher told Human Rights Watch that she
never heard back from the Archive staff on this matter.[161]And,
although the Archive's director told Human Rights Watch that she and her staff
did not know when to classify what constituted a crime against humanity, they had not requested guidelines from the IFAI on
how to address this issue.[162]

Transparency and Human Rights

The transparency law and the opening of secret government
archives have allowed many people in Mexico to exercise a fundamental
human right:the right of access to
official information.By exercising this
right, individuals have been able to
expose abusive practices from the past.By providing elements to promote accountability,
the right has served as a vehicle to strengthen democracy in Mexico.

According to those who have tried to document human rights
abuses committed during the "dirty war" in Mexico,
there has been a major change in the last years.Prior to the transparency law and the opening
of the archives, Mexican society had
testimonies that narrated what had happened during the "dirty war."Now,
it is possible to obtain evidence that corroborates those testimonies.For example,
in February 2002,El Universal,
a daily newspaper in Mexico, published for the first time photographs that
proved that student protestors had been massacred by security forces on October
2, 1968.These twelve pictures with images of
mutilated corpses and crushed skulls constituted,
according to prominent Mexicans interviewed by El Universal, evidence
of the government's campaign against dissidents,
and of its cover-up of these activities.[163]

In addition to corroborating existing testimony, the access to government documents has shed new
light on these past abuses.It has, for example,
made it possible to see how the government financed the "dirty war" activities
through documents in which successive presidents authorized "unforeseen"
expenses of the DFS and General Directorate of Social and Political Investigations
(Direccin General de Investigaciones
Polticas y Sociales) to be used in "confidential" commissions.[164] The
declassified documents have also shed light on the relationship between the
news media and the Mexican government during the "dirty war."A researcher has found,
for example, documents that show
that media owners expressed their preferences to the government about which
president should replace Daz Ordaz in 1969.Other documents show how the government used the provision of paper to
newspapers to control their publications.

The IFAI has proven to be a good ally at times for
researchers seeking information on human rights issues.For example,
information provided by the Attorney General's Office (Procuradura General de la Repblica,PGR) after the Mexican NGO LIMAC requested information through the IFAI
made public previously unknown information on the 1971 student massacre.[165]For the first time,
people read about the existence of "Operation Old" (Operacin Viejo), in
which 250 police and secret service agents participated.Their role was to create a barrier around the
place where the events took place,
in order to facilitate the massacre carried out by a paramilitary group named Los Halcones.This and other
documentation used by the Special Prosecutor's Office provided evidence that in
June 10, 1971,Los Halcones worked closely with the
Mexican security forces.After they
obtained this information, the NGO
published it in their Web site and in news articles.[166]This publicity led to the dissemination of
information that is of public interest,
and to the possibility of evaluating the work of the Special Prosecutor's
Office in respect of how justice for the victims of the massacre was
pursued.

The IFAI has made several important decisions requiring
entities within the executive branch to provide information to the public.But some institutions,
such as SEDENA, have not been very
responsive.For example, in 2004,
a journalist requested information from SEDENA related to the "dirty war": the list of military prisoners between 1973
and 1976; the list of civilians who were held at Military Base Number Onebetween 1972 and 1976; and the names of
the director, deputy director and
chief guard of the prisonbetween
1970 and 1982.SEDENA provided the name
of the director, but held that there
was neither a deputy director nor a chief guard at that time.It also answered that there were never
civilians in that prison, and that
it could not inform about military prisoners since that information was
privileged and confidential in order to protect their private lives.

After the journalist appealed,
the IFAI conducted an investigation and discovered that the Special
Prosecutor's Office has initiated various investigations concerning civilians
who were supposedly held in clandestine prisons at Military Base Number One, and that the CNDH had found that four civilians
were mentioned in the prisoners list of Military Base Number One.It therefore decided to reverse SEDENA's
denial of information regarding the existence of civilians in that military
prison, and held that if there is no
information available, it must
follow the legal procedure established by the transparency law to report that
there is none.Regarding information on
military personnel held in the prison,
the IFAI held that it may not be considered privileged information since it
does not risk the life, security or
health of any individual.[167]

After the IFAI resolution,
SEDENA informed the journalist that it would provide the list of military
prisoners at Military Base Number One,
but that it did not have any files with information on civilian prisoners held
there.[168]Nevertheless,
the journalist was able to then find a document in the DFS files at the
National Archive, signed by Luis de
la Barreda Moreno, head of the DFS at that time,
that lists forty-one civilians that were detained by the military, and specifically says that one of them was going
to be sent to Military Base Number One.[169]

In some cases, it
is still impossible to obtain information held by certain security agencies
without their collaboration.The Center
for National Information and Security (Centro
de Informacin y Seguridad Nacional,CISEN) denied access to tens of thousands of files prepared by the
political police of the PRI, arguing
before the IFAI that they were "privileged files."Even if an individual were allowed to see
information held by CISEN, this
person would not be able to find it.According to a study prepared at the beginning of the Fox administration, CISEN is not an institution but rather a series of
interconnected espionage systems.It
compiles information on intelligence operations,
telephone interventions, credit card
accounts, correspondence, and personal activities; but information is
located in different places and only people within CISEN have the codes
necessary to find all of it.According
to the late Adolfo Aguilar Zinser,
who served as President Fox's national security adviser,
"the spider web can only be unraveled by those who know its secrets, and Fox's government did not dare to take control
of CISEN."As a consequence, he concluded that "CISEN continues to serve the
individuals and groups of the old regime."[170]

In sum, Mexicans
today have unprecedented access to government documents that shed light on
abusive state practices.Yet locating
relevant information can often be unnecessarily difficult.And key government institutions continue to
make it harder-and in some cases impossible-to obtain crucial documentation.

Recommendations

Mexico
has made unprecedented progress over the past several years in promoting
transparency and access to information.Yet the advances in this area remain quite precarious even today.To ensure that they continue and deepen, the next administration should strive to remove
the obstacles that continue to undermine the transparency law.

1) Instruct executive agencies to comply fully with the Transparency Law

The president should make it emphatically clear to all the
institutions of the executive branch that they must comply fully with their
transparency obligations and collaborate fully with individuals seeking
information in their possession.

The administration should also instruct all agencies within
the executive to adopt measures that ensure appropriate archiving.It should support the IFAI's efforts to
promote improved archiving practices by allocating special funds for the
creation of archiving offices within each agency,
and providing adequate training to staff who will work in these offices.

The next administration should pay special attention to
improving access to documents held in the National Archive.Specifically,
it should remove the burdensome procedures established for inquirers to request
information. It should immediately provide funds for an independent group
composed of historians and archivists to create an index of all available
information in the archives,
starting with the first and second galleries,
which contain valuable information of past human rights abuses.Finally,
it should order the Attorney General's Office to require prosecutors, when extracting documents from the archives for
prolonged periods of time, to
replace them with copies, and return
the originals as soon as possible to the public domain.

2) Work with Congress to improve the legal framework for transparency and
access to information

To avoid political interference by the executive in the
IFAI's work, the next administration
should work with Congress to reform the Constitution in order to grant the IFAI
constitutional autonomy.

As an autonomous constitutional agency,
the IFAI would have the ability to sanction government officials that do not
comply with its decisions.It would also
be able to review all decisions on access to information adopted by all federal
institutions (and not only those within the executive branch).It would submit its own proposed budget to
Congress, rather than relying on the
executive branch to do so.And its
commissioners could be appointed by Congress,
rather than by the president.

If the IFAI were to become an autonomous constitutional
agency, all government agencies
subject to the law would automatically have standing to appealits
decisions regarding their management of information.One potential complication that could easily
arise is that government agencies would abuse the appeals process to discourage
legitimate requests for information.Therefore, when
establishingthe IFAI as a constitutionally autonomous agency, it will also be necessary to adopt measures to limit
unfounded and frivolous appeals of its decisions by other government
entities.

To increase
accountability of the use of all public funds,
the next administration should promote a reform of the transparency law
that would extend the scope of its application to include political parties and
all other entities that spend public funds.Such an amendment is critical for enhancing accountability for
activities that are public in nature-from the participation of political parties
in elections to the provision of public services by private actors.

3) Promote increased transparency in other federal and state entities

The next administration should encourage and actively
support initiatives to create better transparency standards and implementing
regulations within other branches of the federal government, as well as the autonomous agencies and state
governments.

To promote the uniform application of transparency norms and
the right of access to information in all government and autonomous agencies, the next administration should work with Congress
to incorporate the "principle of maximum disclosure" in the Constitution, as well as specific standards drawn from the
federal transparency law.

Among the most dramatic examples of the lack
of accountability of Mexico's
old regime were the atrocities committed against student activists, armed insurgents,
and other actors deemed to be threats to national security.At their most extreme,
these violations included the massacres of student protesters in 1968 and 1971, and the torture,
execution, and forced disappearance
of hundreds of civilians during the country's "dirty war" in the 1970s and
early 1980s.Under international law,Mexico
was obligated to investigate and prosecute these crimes.Yet,
for three decades it failed to do so.

The impact of this failure was profound.Hundreds of torture victims struggled for
years with crippling psychological wounds while their tormentors went free, unpunished and even rewarded by the state.Thousands of family members suffered the
anguish of not knowing the fate of "disappeared" loved ones while successive
administrations refused to provide information that might have eased their
pain.And,
while the violence did not have a direct impact on the vast majority of
Mexicans, it did force Mexican
society as a whole to assimilate the ultimate lesson in the limits of their
country's rule of law: the regime that governed them was willing to commit-and
able to get away with-even the most brutal of crimes.

For decades,
the regime's victims, their
relatives, and diverse members of
civil society called for an end to this historic failure. Vicente Fox, during his 2000 presidential campaign, responded to this call by promising to establish a
truth commission that would end the cover-up of these crimes.Then,
after a year in office, he announced
that, instead of creating an
independent commission, he had
instructed his attorney general to establish a special prosecutor's office to address
the cases.

The initiative was the result of a compromise
between members of the administration who had endorsed the idea of a truth
commission and others who had opposed it.Yet, in theory at least, the initiative held the possibility of accomplishing
even more than what the advocates of a commission had hoped for.Not only would the office investigate and
document the past crimes, it would
also prosecute those responsible for them.It would, in other words, pursue both truth and justice.

Four years later,
the results of this important initiative have been deeply disappointing.The Special Prosecutor's Office has succeeded
in obtaining the arrest and indictment of the former head of the secret police
and three other security officials-something that would have been unthinkable
in Mexico until very recently.It has
also won an important ruling from the Supreme Court that prevents these and
other officials from using statutes of limitations to shield themselves from
prosecution in cases involving "disappeared" victims whose whereabouts remain
unknown.

But these successes have been eclipsed by
major setbacks.The office has opened
criminal investigations in over six hundred forced disappearance cases, but filed charges in only fifteen of them. It has obtained arrest warrants for twelve
former officials, but only six have
actually been arrested, and only
four of these are facing trial in civilian courts.The special prosecutor's most ambitious
move-his effort to obtain indictments of former president Luis Echeverra-was
rejected by the courts.And, as of this writing,
the office has not obtained a single conviction.

Perhaps the most substantial accomplishment
of the Special Prosecutor's Office,
in addition to the indictments and the favorable Supreme Court ruling, has been the production of an ambitious draft
report on the history of the crimes under investigation.(The final version had not been released as
this Human Rights Watch report went to press.)The draft report systematizes new evidence culled from the secret
archives that Fox released in 2002,
integrating it with new and old witness testimony,
to construct the most complete account to date of the role of the state-and in
particular the military-in numerous human rights atrocities.

Yet this draft report is, itself,
the clearest evidence that the Special Prosecutor's Office has not yet lived up
to its potential.Even its main author
has conceded that the report contains only a small fraction of the information
that could have been collected if a more serious investigation had been carried
out.At the same time, however,
it reveals the existence of extensive evidence in government archives
implicating former officials and military officers-a level of documentation
that has never been found in countries like Argentina and Chile, where prosecutors have managed to prosecute many
similar crimes.Given the type of
evidence that is now available,Mexico
should be able to make similar progress in promoting accountability for past
human rights abuses.

The Special Prosecutor's Office was meant to
provide the Mexican state with a means of fulfilling its obligation to address
past abuses.But it runs the risk of
doing the opposite.The creation of a
"special" entity may have merely made it easier for the "regular" institutions
of the justice sector to continue to duck their responsibility- leaving it to
the new office to do what they should have been doing all along, and to take the blame for its failure to produce
more substantial results.

Yet the failure of the Special Prosecutor's
Office to achieve more substantial results is,
ultimately, the responsibility of
the Fox administration itself.After
launching the ambitious initiative,
the administration failed to ensure that the office possessed the resources, credibility,
and powers it needed to succeed.It also
failed to ensure the active collaboration from other institutions, such as the Federal Investigation Agency (Agencia Federal de Investigacin,AFI),
which has been unable or unwilling to execute a majority of the arrests
warrants obtained by the special prosecutor.

The institution that has shown the least
willingness to collaborate with the Special Prosecutor's Office is the one that
could potentially contribute the most: the Mexican military. While the Defense
Ministry has declassified important documents from the "dirty war" era, it has done virtually nothing to help
investigators understand or locate evidence within the released files, or obtain information that appears to be absent
from those files.Moreover, military prosecutors have insisted on pressing
charges in military courts against military officers for the crimes that the special
prosecutor is investigating,
potentially sabotaging efforts to prosecute the crimes in civilian courts, where human rights cases belong.

Shortly before this report went to press, the Fox administration announced, inexplicably,
that it intended to close the Special Prosecutor's Office within a matter of
weeks.To do so would mean, essentially,
consigning to failure the country's first serious effort to promote
accountability for these atrocities.But, whether or not the
office does close,Mexico's obligation to complete the
work it began-to end the years of impunity for these crimes-will remain as
pressing as ever.And just as President
Fox inherited full responsibility for this ongoing impunity from his
predecessors, so the next president
will inherit it from Fox.

Human Rights Watch believes that the work
begun by the Special Prosecutor's Office can still be salvaged, but only if aggressive steps are taken to overcome
the obstacles, detailed in this
chapter, that have hindered the
investigation and prosecution of these crimes until now.These steps should include ordering the
military to cooperate fully with civilian prosecutors,
promoting legislation that would expand the tools available to those
prosecutors, and, finally,
establishing a truth commission that would reinforce efforts to prosecute these
crimes.

Background

History
of Abuses

On October 2,
1968, in the Tlatelolco section of Mexico City, government troops opened fire on a student
demonstration, killing or wounding
hundreds of protestors and establishing what would be a modus operandi for handling threats to the political establishment
in the coming years: repressive violence followed by official denial and
silence.

There would be no serious investigation of the "Tlatelolco
Massacre"-nor of the "Corpus Christi Massacre" that followed three years later, in which student demonstrators were attacked by
thugs enlisted, trained and armed by
the government.

In the coming decade,
the Mexican government would carry out repeated and systematic human rights
abuses against political opponents and dissidents in what came to be known as
the country's "dirty war."Its targets
included armed groups and their sympathizers,
real or alleged, as well as student
activists and other people who participated in protests,
but never armed activity.Its methods
included torture, extrajudicial execution, and forced disappearance,
and often entailed an extreme degree of brutality and wanton disregard for
human life.

One resident of Atoyac de lvarez,
Guerrero, for example, described to Human Rights Watch how he had been
detained by the army in 1974 and held for two weeks,
blindfolded and subject to daily torture,
which included cigarette burns and electrical shocks to his testicles.His captors demanded that he confess to
having participated in the killing of several soldiers-a crime he insists he
had not committed.He resisted their
pressure, even as some his fellow
prisoners were beaten to death, but
finally capitulated when told that his family would be killed if he did not
sign the confession.[172]

Others fared even worse.Jos Ignacio Olivares Torres,
a guerrilla leader from Guadalajara, was captured by the Federal Security Directorate (Direccin Federal de Seguridad, DFS) in January 1974.Three days later his body appeared on a
street in his home city, with signs
of torture that included the holes where scorching hot nails had been driven
into his kneecaps.His face was so
disfigured that his family was only able to identify him by his teeth and some
scar tissue that had been left by an earlier surgery.[173]

Hundreds of people were detained by security forces and
never seen again.During 1974, an air force plane made regular night flights out
of a military base in Guerrero to dump bodies out over the Pacific
Ocean.According to former
air force personnel who participated in the flights,
the prisoners were shot in the head just before being boarded on the plane, though some were still alive when tossed out the
cargo door.[174]

The violence left profound scars on the victims and their
relatives.One torture victim told Human
Rights Watch that, because of severe
blows he had received to his head while in detention,
he had been unable to return to work and had been supported the last three
decades by his children.[175]Another recalled suffering from anxiety
attacks and being unable to complete his university studies because he found it
impossible in the wake of his torture to concentrate on his studies.[176]

The relatives of the "disappeared" suffered a particularly
cruel fate-waiting in vain for years for the news that might allow them to bury
their dead and begin a process of mourning.The cruelty was compounded by the Mexican government's refusal to
provide them with information about what had happened to their family
members-or to prosecute those responsible.

Human Rights Watch spoke with dozens of people in Atoyac de
lvarez, Guerrero, who recalled months and years of desperation and
despair as they visited government offices,
military bases, and prisons
searching for lost loved ones.Wherever
they went, they were rebuffed, and in some cases even threatened with reprisals
if they persisted in their search.

One Atoyac resident described how,
in the mid-1970s, after months of
searching for a son who had been detained by soldiers,
she managed to get a meeting with the commander of a local military base.The officer told her to go home and wait for
her son."So I went home and waited," she recalled."But I couldn't take it.I almost
went crazy.I wanted to cry.I wanted to scream.I wanted to run.I couldn't eat.I couldn't sleep.So I prayed to God to give me the peace of
mind to wait.And I waited day and
night.And I have never stopped
waiting."[177]

Another Atoyac resident described how her family had hounded
the Attorney General's Office (Procuradura
General de la Repblica, PGR) about
the case of her brother who had been detained by soldiers in 1974 and never
seen again.[178]After five years,
the PGR responded with a document that alleged that the brother had been living
a "troubled life," borrowing money
from prostitutes and provoking fights with their pimps.The note claimed that he had been detained by
"various individuals," who had
demanded he return money taken from a brothel.[179]The family sought to refute this account by
providing the PGR with a series of letters from local authorities and former
employees that attested to the brother's good conduct as well as his relatively
well-off economic condition (to disprove the allegations he had borrowed money
from prostitutes).[180]But they never received any clarification
from the government until, in 2001, a report of the National Human Rights Commission
confirmed that the brother had indeed been the victim of a forced disappearance
carried out by soldiers.[181]

Another resident described how,
in 1998, she and a group of other
relatives of "disappeared" people brought their cases to the federal
prosecutor's office in Atoyac de lvarez.When the attending prosecutor heard the nature of their cases, he told them he could not receive it and left the
office.A few minutes later a car full
of soldiers showed up in front of the office and appeared to stand guard at the
front door.The relatives waited for
several hours and were finally able to get another prosecutor to take the case
when a television news reporter showed up and began filming their
interaction.But the case languished in
the office for months.[182]

After years of campaigning by victims' relatives and
national human rights groups, the
PGR (finally did open an investigation into the "disappearance" cases in Atoyac
de lvarez in 1999.But in 2000, the PGR decided it did not have jurisdiction over
the cases and turned them over to the military justice system-which had, itself,
consistently failed to investigate and prosecute abuses committed by military
personnel.

By November 2001,
thirty-three years after the Tlatelolco massacre,
there had still been no serious effort to prosecute these or other human rights
violations committed during that era.

Mexico's
Obligations under International Law

Mexico
is party to several international treaties that prohibit human rights
violations, including torture, arbitrary detention,
extrajudicial execution, and forced
disappearance.[183]The Mexican government's obligation under
these treaties is not only to preventviolations, but also to investigateand prosecuteany
violations that do occur.

This second set of duties is,
in part, a corollary to the first, reflecting the view that effective prevention
requires investigation and punishment.[184]It also derives from the right to a legal
remedy that these treaties extend to victims of human rights violations.The American Convention on Human Rights, for example,
states that every individual has "the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection
against acts that violate his fundamental rights."[185]The Inter-American Court of Human Rights has
held that this right imposes an obligation upon states to provide victims with
effective judicial remedies.[186]

In addition to the obligation to investigateand prosecute,
states have an obligation to informthe
public about the violations that took place.This obligation also derives partly from
the states' duty to prevent future violations.As the Inter-American Commission on Human Rights (IACHR) has held, "Every society has the inalienable right to know
the truth about past events, as well
as the motives and circumstances in which aberrant crimes came to be committed, in order to prevent repetition of such acts in the
future."[187]

The state has a special obligation in cases of forced
disappearance to provide information to the victims' relatives.The U.N. Human Rights Committee has held that
the extreme anguish inflicted upon relatives of the "disappeared" makes them
direct victims of the violation as well.[188]To the extent the state fails to inform
relatives about the fate of the "disappeared,"
it fails to fulfill its basic obligations.[189]In addition,
the Inter-American Court
has held that states' obligation to provide reparation to victims of abuses
translates into an obligation to provide family members with information about
what has happened to people who have "disappeared."[190]

Given this duty to inform,
the duty to investigate violations must be understood as distinct from the duty
to prosecutethem.According to the Inter-American Court:

The duty to investigate . . .
continues as long as there is uncertainty about the fate of the person who has
disappeared.Even in the hypothetical
case that those individually responsible for crimes of this type cannot be
legally punished under certain circumstances,
the State is obligated to use the means at its disposal to inform the relatives
of the fate of the victims and, if
they have been killed, the location
of their remains.[191]

Finally it is important to stress that not just any sort of
investigation will suffice to fulfill this obligation.The IACHR has found that, "when the State permits investigations to be
conducted by the entities with possible involvement,
independence and impartiality are clearly compromised."[192]The result is "de facto impunity," which "has a corrosive effect on the rule of law
and violates the principles of the American Convention."[193]

The
Special Prosecutor's Office

Creation
and Mandate

On November 27,
2001, after decades of secrecy and
denial, the Mexican state officially
recognized the acts of political violence perpetrated by its security forces
during the "dirty war" of the 1970s and early 1980s.In a public ceremony in Mexico City,
the National Human Rights Commission (Comisin
Nacional de Derechos Humanos,
CNDH) released a three thousand page report on state abuses committed during
that era.[194]The report was based largely on information
from secret government archives on more than five hundred people who had been reported
missing.It confirmed that at least 275
of those missing had been arrested,
tortured, and killed by state
security forces.

After the CNDH presented its report,
President Fox announced the creation of a special prosecutor's office to
investigate and prosecute past abuses committed against dissidents and
opposition groups by state security forces.[195]He also instructed the attorney general to
establish a "Support Committee,"
made up of "citizens of public standing and experience in the judicial branch
or in the promotion of human rights,"
that would provide the special prosecutor with assistance in the investigations, and instructed the interior minister to establish
an "interdisciplinary committee" to develop a proposal for providing
reparations to the victims of abuses.

The executive order establishing the Special Prosecutor's
Office specifically instructed the Defense Ministry to turn over to the
prosecutor's office any information relevant to the cases to be
investigated.And it instructed the Interior
Ministry to release secret government archives with information on these abuses, so that it would be readily available to the special
prosecutor, as well as to the public
at large.

Within a few weeks,
the attorney general named a legal scholar,
Ignacio Carrillo Prieto, to serve as
the special prosecutor, and by
mid-January 2002, the office was up
and running.Its staff of fifteen
prosecutors was divided into three sections.The first would address the forced disappearance cases already investigated
by the CNDH, as well as other
similar cases from the "dirty war."The
second section was charged with examining the 1968 and 1971 massacres of
student protestors.[196]The third section would explore other abuses
not covered by the first two (with no fixed time limit).

In addition to these sections,
the Special Prosecutor's Office set up a documentation center whose task was to
collect relevant information from the secret government documents that were set
to be released, as well as from
other government archives.The office
also set up a two-person team to develop a program to provide psychological
care to the victims and relatives of past abuses.

Results after Four Years

The Special Prosecutor's Office has broken some important
new ground in its efforts to end official impunity in Mexico.But its few successes have been eclipsed by
major setbacks in a variety of areas.[197]

The Massacre Cases

The special prosecutor's most notorious setbacks have come
in the two most emblematic crimes of the old regime-the massacres of student
protestors in 1968 and 1971.Today, one of the cases is effectively dead; the other
just barely alive.

The Special Prosecutor's Office began work on the two
massacre cases after the Supreme Court ordered the PGR to investigate them in
2002.It focused first on the 1971
massacre and, in July 2004, charged eleven people,
including former president Luis Echeverra,
with "genocide" for the killings that had taken place then.A federal judge rejected the charges, arguing that the statute of limitations had run
for the alleged crime.The Special
Prosecutor's Office filed an appeal,
which eventually reached the Supreme Court.In June 2005, the Court ruled
that that the statute of limitations had indeed run for everyone except Echeverra, and the former interior minister Mario Moya y
Palencia.The Court reasoned that the
clock on the statute of limitations had been suspended during the years
Echeverra and Moya y Palencia had enjoyed immunity from prosecution due to
their government posts.Consequently, the thirty-year period allowed for prosecution had
not yet terminated.The Supreme Court
sent the case back to the trial court to determine whether the charges were
sufficiently substantiated to proceed to trial.A month later, the trial
judge ruled that they were not and closed the case,
a ruling that is not subject to appeal.

In the 1968 case,
the Special Prosecutor's Office charged eight former officials, including Luis Echeverra,
with "genocide" in September 2005.The office
also charged Echeverra and two other ex-officials with responsibility for a
forced disappearance case.Once again, a judge rejected the genocide charge for everyone, except Echeverra,
on the grounds that the period allowed for prosecution by the statute of
limitations had run.The judge also
rejected the charges in the case of Echeverra,
but on the grounds that there was not sufficient evidence that the alleged
crime constituted "genocide."The
Special Prosecutor's Office has appealed the ruling in the 1968 case.This time,
however, the Supreme Court has
declined to review the appeal, and
it is currently under review by a lower court.

The only charge from the 1968 massacre that can proceed, according to the trial judge,
is the case of the single forced disappearance.Yet here the judge found that the Special Prosecutor's Office had failed
to establish probable cause of criminal responsibility.In other words,
this one case could still go forward,
but only if the prosecutors are able to present more compelling evidence to
substantiate their charge.

The Forced Disappearance Cases

The Special Prosecutor's Office has made some progress in a
number of other forced disappearance cases.It has filed charges of "abduction" (privacin
ilegal de la libertad) in fifteen of these cases and obtained indictments
in nine of them.[198]It has obtained arrest warrants for twelve
former officials, but only six have
actually been arrested.Since Mexico
does not permit trials in absentia, prosecutions can only proceed against those former
officials who are under arrest.

One of those six is Miguel Nazar Haro,
the former director of the DFS.The case
involves the forced disappearances of Jess Piedra Ibarra and Ignacio Salas
Obregn, both members of the
guerrilla group "Liga Comunista 23 de
Septiembre."[199] Nazar
Haro was arrested in February 2004,
but released from jail and placed under house arrest the following November, as a result of a 2004law that allows people over seventy years old to avoid jail time
while in preventive detention.[200]The case is currently stalled due to the
defense's efforts to summon a witness who cannot be found.(There is no legal time limit for this
evidence to be incorporated into this case,
and the first stage of the trial may not conclude until the testimony is given
before the judge.)

A second person facing trial is Juventino Romero Cisneros, a former Nuevo Leon state judicial police official, who is charged with the "abduction" of Jess
Piedra Ibarra.[201] Romero
Cisneros has presented two injunctions,
which are now being reviewed by an appeals court after having been rejected by
the trial court.

A third person facing "abduction" charges in case of Jess
Piedra Ibarra is Carlos G. Solana Macas,
former judicial police director in Nuevo Len state.[202]The Special Prosecutor's Office concluded its
investigation into this case in 2004,
but Solana Macas was not detained until December 2005.Solana Macas has presented an injunction, which remains pending.

The fourth person facing trial is Wilfredo Castro Contreras, former commander of the judicial police in
Guerrero state, charged with
"abduction" in the disappearance case of Bernardo Reyes Flix, an alleged member of a guerrilla group in Guerrero
state.[203]Like Nazar Haro,
Castro Contreras has benefited from the 2004 law and is under house
arrest.The case is currently stalled
due to the defense lawyers' efforts to summon an expert witness.

In two other cases,
the prosecutions have been derailed by questionable actions by the judges.One involves "abduction" charges against
Alejandro Straffon Arteaga, former
state attorney in Hidalgo, for the "disappearance" of six members of the
guerrilla group "Brigada Campesina Los
Lacandones." After Straffon was arrested,
a judge refused to indict him, setting
him free instead.The Special
Prosecutor's Office appealed the ruling and won an order from an appeals court
to re-arrest Straffon.But Straffon has
since eluded capture.

In another case,
the special prosecutor filed "abduction" charges against General Francisco
Quirs Hermosillo in August 2005 for the 1974 abduction of Rosendo Radilla in
Guerrero.The judge issued an arrest
warrant, but then turned the case
over to the military justice system,
arguing Quirs Hermosillo was a military official and was accused of an act
that he committed while on duty.The
decision, which has since been
upheld by an appeals court, sets a
disturbing precedent for the hundreds of forced disappearance cases involving
military personnel that have yet to be prosecuted.(The problem of military jurisdiction over
these cases is discussed in detail below.)

The Historical Report

In addition to the indictments in the "forced disappearance"
cases, the other area where the
Special Prosecutor's Office has made some significant progress is in producing
an ambitious draft report on the history of the crimes under investigation.

The significance of the report is twofold.First,
the report contains new evidence that has been culled from the secret archives
that Fox "opened" in 2002-including documentation from the military's archives
which had been completely inaccessible in the past.For years,
the only evidence available regarding these abuses had been the testimony of
victims and their relatives, which
had been painstakingly gathered by local rights groups.In its detailed report in 2001, the CNDH supplemented such testimony with official
documentation on many of the crimes drawn from the secret archives from the
defunct Federal Security Directorate (Direccin
Federal de Seguridad).These
documents clearly showed that the victims,
before being "disappeared," had been
detained and held by security forces.

The report from the Special Prosecutor's Office has expanded
upon the documentation from the DFS archives and added documents from the
military itself.These documents provide
detailed information of some of the military operations that took place in
Guerrero at the time of the "disappearances"; clear evidence that the military
routinely detained civilians; the names of people or identification of military
units involved in the operations,
including the detentions; and clear evidence that the defense secretary and (at
least in a few cases) the president knew about the detentions.

The military documents generally do notprovide the names of the detainees,
nor any direct indication that they were subject to torture, murder,
or forced disappearance.Nor do they
provide direct evidence that the top military and civilian officials knew that
detainees were suffering such a fate.However, combined with the
DFS documents and the testimony,
they provide the fullest picture to date of the state's repressive machinery at
work.

This, then, is the second reason the new draft report is
significant: it has begun the crucial work of integrating and cross-referencing
information from the military documents with the information already available
in the CNDH report, and witness and
victim testimony gathered by civil society groups.

What Remains to Be Done

The draft report,
while representing a significant advance,
is also the clearest evidence that the Special Prosecutor's Office has not
lived up to its potential.Its principal
author, Jos Sotelo, acknowledges that the report contains only a small
fraction of the information that could have been collected if a more serious
investigation had been carried out.According to Sotelo, there
are significant portions of the declassified military archives that his
understaffed and unpaid team did not have time to examine,
and there are substantial gaps in those portions of the files that they did
review."What appears in the report is
only 15 percent of the information that's in the archives,"
Sotelo told Human Rights Watch."It's
just the tip of the iceberg."[204]

In addition to the archival research that remains to be done, Sotelo told Human Rights Watch that his team has
been unable to complete other important tasks.One is to document the abuses committed by the armed groups that the
state was combating.Another is to
create a database detailing all the evidence available on each individual case
of forced disappearance-a crucial step for demonstrating the solid evidentiary
basis of the report's findings.

Despite its obvious shortcomings,
however, the draft report does
contain important evidence implicating former officials in the abuses under
investigation.In fact, with the exception of Guatemala,Paraguay, and most recently Argentina,
no other country in the region has seen secret documentation of this sort made
public.And yet,
even without the benefit of such compelling evidence,
prosecutors elsewhere have been able to make significant progress in
prosecuting similar cases.In Argentina, for example,
over 330 former military and police personnel are now facing human rights-related
charges and about 180 are detained in prisons or military installations, or are under house arrest.In Chile,
over ninety former military and police officers have been convicted, and hundreds of other cases are currently being
prosecuted.

Clearly, with the
sort of evidence they have at their disposal,
Mexican prosecutors should be able to accomplish much more in these cases than
they have to date.If hopes for
prosecuting those responsible for the 1968 and 1971 massacre cases have dimmed
considerably, there is no good
reason at this point for Mexico
not to prosecute many of the hundreds of cases of forced disappearances
(including the one case linked to the 1968 massacre).

Aside from prosecutions,
the single most important unfulfilled task in the eyes of the victims' families
is to determine the ultimate fate of the "disappeared."To date,
the Special Prosecutor's Office has determined the whereabouts of only six out
of the more than six hundred people who "disappeared" during the "dirty war."(It found that four of these were sent to
psychiatric institutions, and two
were killed while in detention.[205])

In this respect,
it is important to keep in mind that Mexico's obligation under
international law is not only to prosecutethe abuses but also to inform the public-and especially the victims-about
what exactly took place. When Human Rights Watch asked the relatives of the
"disappeared" in Guerrero what they hoped to obtain from the Special
Prosecutor's Office, the vast
majority answered simply: the truth about what took place and the location of
their loved ones.

A final task that remains pending is providing reparations
to the victims of past abuses and their relatives.While the "interdisciplinary committee"
established by the Interior Ministry has reportedly developed a proposal for a
reparations program, it has not yet
been implemented.

Obstacles to Accountability

The Fox administration presented the
Special Prosecutor's Office as an initiative that would combine the functions
of a truth commission with those of a criminal prosecutor.The office would both investigate and
prosecute past human rights atrocities.It would seek,
in other words, to provide both
truth and justice where before there had been only official denials and impunity.Yet the office has confronted daunting
obstacles that have seriously hindered its progress in both areas.

Obstacles
to Truth

Unwilling Witnesses

One basic obstacle to resolving past human rights cases has
been the unwillingness of former government officials and military officers to
testify regarding what they know.With
few exceptions, former members of
the security apparatus that carried out these abuses have been unwilling to
provide information.

The special prosecutor has summoned several former officials, including former president Luis Echeverra lvarez
and former Mexico City
regent Alfonso Martnez Domnguez,
to testify about their alleged involvement in the 1968 Tlatelolco
massacre.The interrogations produced
little new information,
however.Echeverra chose not to respond
to the special prosecutor's questions (exercising his constitutional right
against self-incrimination), and
Martnez Domnguez denied all responsibility.Former general Luis Gutirrez Oropeza,
head of the Presidential Security,
also declined to answer the special prosecutor's questions, as did Miguel Nazar Haro and Luis de la Barreda Moreno, both former heads of the Federal Directorate of
Security.

In the forced disappearance cases,
the Special Prosecutor's Office has sought testimony from only five retired
military officers and ten former civilian officials.[206]Only one has provided useful testimony, though he later retracted it.The rest have either denied any knowledge of
the events, or exercised their constitutional
right to remain silent rather than provide potentially self-incriminating
testimony."The biggest obstacle we've
encountered," one top prosecutor
told Human Rights Watch, "is the big
silence" that has been kept by those who knew what happened.[207]

Such silence is hardly surprising.Whether it's a matter of esprit-de-corps, or
simply the fear of self-incrimination,
former officials rarely reveal much in circumstances like these. Moreover, they have nothing to gain by testifying.Mexico does not allow for plea
bargaining, except in cases of
organized crime.Consequently, the Special Prosecutor's Office has no way to
encourage witnesses to testify.

While the Special Prosecutor's Office has been able to
gather substantial testimony from eyewitnesses and surviving victims, even many of them are reluctant to collaborate
with investigators.In Guerrero, where a majority of the "disappearance" cases took
place, the distrust is particularly
pronounced.[208]A police investigator told us that the vast
majority of relatives he sought out to provide declarations did not want to
talk to him about their cases.Only two
out of thirty people this agent tracked down were willing to answer his
questions, and many were made
visibly nervous by his presence. He said that his colleagues had reported
similar experiences.[209]

The unwillingness of former military and security personnel
to testify has made it virtually impossible to determine the ultimate fate of
the "disappeared."According to various
researchers who have worked in the government archives,
including the head researcher, no
documentary evidence has been found in the government archives with that
information-and it seems unlikely that any will be found.A more promising method for determining the
fate of the "disappeared" would be to conduct exhumations at the site of
clandestine graves where many have presumably been buried.The problem here,
however, is locating the burial
sites.According to the world-renowned
Argentine Team of Forensic Anthropologists(Equipo Argentino de Antropologa Forense,EAAF), which conducted a preliminary missionto
Mexico in September 2003 at the behest of the Special Prosecutor's Office, it would be very difficult to find the remains of
victims without having "direct witnesses" who could point out precisely where
investigators should dig.[210]

Incomplete archives

Given the unwillingness of current and former state actors
to testify about past abuses, the
Special Prosecutor's Office has had to turn to another source of evidence: the
documents they left behind in their institutional archives.Indeed,
according to the Special Prosecutor's Office,
these documents have provided more than 90 percent of the new evidence the
office has obtained during its four years in operation.[211]Unfortunately,
however, the Special Prosecutor's
Office's ability to exploit this source has also been severely limited by
several of the factors we described in Chapter 3.

One important limiting factor has been the government's
failure to ensure that key archives turned over by the Interior Ministry
(including the DFS archive) were adequately equipped with the basic research
aids that any archive needs to function: a complete index and catalogue of its
contents.More than 50 percent of the
collections in the archives are not indexed or catalogued,
and the catalogues that do exist are rough and incomplete.As a result,
investigators from the Special Prosecutor's Office had little guidance when
they began searching the archives for information on the abuse cases.[212]

To compensate for the lack of indexes and catalogues, the documentation center of the Special
Prosecutor's Office was forced to develop its own-slowly mapping the archives'
content based on the documents brought to them by the archive staff.This has proven to be an enormously arduous
and time-consuming task, given that
the archive contains millions of documents-and today it remains far from
complete. For example, as we
described in Chapter 3, in one of
the two key galleries of the archives containing government documents covering
the "dirty war" years, six hundred
out of three thousand boxes in the second gallery are indexed.The boxes sent to the National Archive by
SEDENA are amongst the six hundred indexed ones,
but the index is rough and simple and does not contain detailed information
about the content of each box.Therefore, when researchers want to look for information in
this gallery, they have to look at
all boxes, one by one, and see if there is information that could be
valuable for their research because there is no way of knowing, beforehand,
what is in each box.

As we discuss below,
the documentation team never had adequate personnel to complete their archival
research."There's a sea of information
in the archives," the current director
of the team said."With time and
resources one could accomplish a lot.But the time ran out on us."[213]

Once the archives were mapped out and the researchers were
able to comb through a substantial portion of the files,
it became clear that there was another and even more serious problem with their
contents: the apparent lack of documents relevant to a number of the most
important questions.

The files appear to lack any information about the ultimate
fate of the hundreds of people who were "disappeared" during the "dirty
war."While there is evidence of
arbitrary detention in many cases-sufficient to establish the forced
disappearance of the victims-what's missing is information about what happened
to them after they were detained,
how they were killed, and what was
done with their bodies.

Also lacking are documents directly or indirectly
identifying who did the killing, who
authorized it, who knew about it, and who could have stopped it.This is not to say that there isn't
sufficient and even compelling evidence to convict some of those who were
responsible.But building a case for
conviction based on circumstantial evidence is far more difficult than building
one based on direct evidence of participation in-or knowledge of-the crimes.

The absence of such documentation may well result from the
fact that the criminals had the foresight to avoid leaving any paper
trail.But,
as we saw in Chapter 3, there are
also glaring examples of documentation that does not exist, but logically should.For example,
although the National Archive contains a series of documents referring to a
1969 ceremony to honor members of the "Olimpia Battalion" who "died in
compliance of their duty on October 2,
1968, in the TlatelolcoPlaza," there are no other documents describing the role
the battalion played during the massacre that took place then and there.Moreover,
there is no other reference in any other document to the existence of the
Olimpia Battalion.[214] There is
only one document from SEDENA that recognizes that there were nineteen military
officials injured, but there is no
reference to military officials that died during that day.

Yet another example of missing documentation involves the
archives of the PGR.Although these
archives were not released along with the others in 2002,
investigators from the Special Prosecutor's Office did have access to
them.And,
while they were able to find the case files for investigations that the PGR had
opened against civilians detained during the 1968 and 1971 massacres, they found that all the case files for the
investigations of the crimes committed against civilians had been removed.[215](Investigators from the Special Prosecutor's
Office did find more recent case files for investigations into the removal of
those earlier case files, but these
did not yield any clues about the original events.)

In sum, the
archives have been an invaluable source of information.But to navigate them effectively, and to fill in the major gaps in its contents, the Special Prosecutor's Office would have
benefited enormously from the active collaboration on the part of the
institutions that generated those documents-the institutions whose members
participated in the crimes under investigation. Such collaboration was not
forthcoming.

Obstruction by the Military

If there is one state institution that could fill in the
holes in the investigations, it is
the Mexican military.Military personnel
participated in many-if not most-of the crimes,
and the institution itself is directly implicated in their abusive
practices.The Mexican military has a
clear obligation to advance efforts to resolve these crimes and ensure that
those responsible are brought to justice.This obligation is established in Mexican and international law.It was explicitly included in the executive
order that created the Special Prosecutor's Office.[216]And it has even been publicly recognized by
the top brass of the military on various occasions.

Yet the military's record on fulfilling this obligation has
been one of abject failure.While it is
true that SEDENA turned over hundreds of boxes of files to the National Archive, as we noted above,
there are mysterious gaps in the documents that appear in the archives.Moreover,
it is extremely difficult for an outsider to navigate through what is
there.While SEDENA did provide a
general catalogue of the files in the archives,
it did not provide a detailed index of the contents of those files.And,
according to the chief investigator of the Special Prosecutor's Office, much of what was there was written in code and
largely incomprehensible to the unschooled reader.[217]SEDENA has not provided the investigators
from the Special Prosecutor's Office with any guidance that would make it
easier to locate relevant information.

When investigators from the Special Prosecutor's Office have
requested information directly from the military,
they have been routinely told that the information did not exist.When,
for example, the Special
Prosecutor's Office requested information about the military personnel who were
assigned to a military checkpoint in a specific town in Guerrero, the Military Prosecutor's Office (Procuradura de Justicia Militar,PGJM) responded that "no information was found
relating to the incidents that you mention."[218]When asked for the names of the officers who
served at the Atoyac military base in 1974,
the PGJM responded that the Special Prosecutor's Office would have to provide
the officers' names itself,
explaining that "given the constant promotions and demotions of personnel in
the Battalion and the time that has passed since 1974,
it is not feasible to provide the documentation in the archives as it has been
requested."[219]

Even when the Special Prosecutor's Office has provided the
names of specific officers, the PGJM
has claimed that it could not find files on those individuals.In one case,
the Special Prosecutor's Office provided not only the name and rank of an
officer, but also the military base
he had served at and the dates he served there-yet still,
the PGJM claimed it could find no information on the officer.[220]

The military has also consistently refused to provide
information regarding civilians who "disappeared" after being held in military
installations.When asked by the Special
Prosecutor's Office for any information regarding individuals who were last
reported seen alive in military detention,
the PGJM has insisted that it could find no information.Typical was the response it gave to the
Special Prosecutor's Office's inquiry regarding Alberto Arroyo Dionisio.According to both eyewitnesses and a DFS
document cited in the CNDH's 2001 report,
Arroyo was held for two months by the military in Guerrero and then sent to
Military Base Number One.Yet the PGJM
reported to the Special Prosecutor's Office that "[after] a meticulous search
in the corresponding archives, no
records were found indicating that the person entered any military prison."[221]

Not only has the military proven unwilling or unable to
provide critical information about the "dirty war" crimes,
it has publicly denied or downplayed the military's role in past abuses.When asked,
for example, about the "Brigada
Blanca," the counterinsurgency group
responsible for many of the "dirty war" crimes,
Defense Secretary Clemente Vega insisted that it was "something that doesn't
concern the military."He also claimed
that the Brigada Blanca had not used Military Base Number Oneas a base of operations.[222]

This denial by the institution's top officer reflects the
position taken by the institution in response to queries by the Special
Prosecutor's Office and independent investigators.When investigators within the Special
Prosecutor's Office conducted an inspection of Military Base Number One, the military officers accompanying them insisted
that they knew nothing about the detention of civilians.[223]And,
as was documented in Chapter 3, when
one journalist who has written extensively on the "dirty war" used the
transparency law to request a list of civilians held at Military Base Number
One, SEDENA replied that "since the
creation of military prisons there have been no 'civilians' held or detained in
them, but only military personnel
who breach military discipline."[224]

What makes these denials
especially remarkable is the fact that they brazenly contradict what is already
public information.In its 2001 report, the CNDH announced that it had been able to verify
"the existence of installations run by members of the aforementioned 'Special
Brigade or White Brigade' inside Military Base Number One."[225]The CNDH report also cited at least eleven
documents from the 1970s, most from
the Federal Security Directorate,
that revealed that civilians had indeed been held at Military Base Number One. Similarly,
a widely publicized book by Julio Scherer and Carlos Monsivis cites a DFS
report from the day of the Tlatelolco massacre that lists the names of over three
hundred civilians held at Military Base Number One.[226]This documentation,
moreover, was corroborated by
numerous firsthand accounts from civilians who reported having been held at the
military base.

The repeated claims by SEDENA that it cannot locate information
relevant to the "dirty war" cases seem highly dubious given the fact that, according to people who have done extensive
research in the National Archive,
the military keeps exceptionally detailed and well-organized files.It certainly may be true that locating the
requested information is a time-consuming task.However, that is precisely
the task that the president assigned the military in the executive order that
established the Special Prosecutor's Office.

There is one important exception to the military's
stonewalling the investigation of these crimes.In 2002, the Military
Prosecutor's Office turned over the files of the cases they were bringing
against Acosta Chaparro and Quiros Hermosilla.The files contained the only available accounts by former military
personnel of army participation in "dirty war" crimes-detailed, graphic,
and compelling testimony regarding the extrajudicial execution of civilians at an
air force base in Guerrero state,
and the disposal of their bodies in the ocean.[227]

Yet this example of information sharing is an exception that
proves the rule in several respects.First, it shows that military
personnel do have compelling
eyewitness testimony to provide, and
are willing to provide it under certain circumstances.In this case,
the first witness to provide information did so while being interviewed by
prosecutors investigating drug charges against the former military
officers.He was a participant in a
witness protection program established for witnesses in cases involving
organized crime-and he stood to benefit himself with a sentence reduction in
exchange for his collaboration, an
arrangement that is currently only available in cases involving organized
crime.The other three former military
officers who corroborated his claims did so when summoned by military
prosecutors-in other words, when the
military itself compelled them to do so.

The fact that the military turned over the case files is
hardly evidence of active collaboration with the Special Prosecutor's
Office.The military was required by law
to do so, since the files contained
evidence regarding crimes that the civilian prosecutors were investigating.And,
while the military appears to have flouted this obligation in other cases, in this particular case,
it would have been difficult to deny that the testimony existed-at least not
without doctoring the case files themselves,
which could have easily been detected.Moreover, the military
officers implicated by the testimony were already being prosecuted in military
courts for illegal drug trafficking,
and clearly out of favor with the institution.And finally, as we discuss
below, there may have been little
reason to fear that the Special Prosecutor's Office would succeed in
prosecuting them, as civilian courts
were likely to turn the cases over to the military justice system.

In fact, even as
the military turned over the case files,
its prosecutors proceeded to pursue their own criminal investigation of the
"disappearance" cases.In doing so, they further undermined the Special Prosecutor's
Office's ability to gather information on the cases,
heightening the climate of fear and distrust that continues to haunt the
communities that bore the brunt of the "dirty war" decades ago.

As part of its own investigation,
the PGJM installed an office in Atoyac de lvarez,
Guerrero-at a short distance from the office already established by the Special
Prosecutor's Office-and began calling on victims' relatives to provide
testimony about alleged "disappearances" committed by the army.Many civilians in the area who received
these summons interpreted them as a form of harassment.[228]The PGJM is itself apparently aware of the
effect its investigations have had on victims' relatives in Guerrero.One woman who disregarded an invitation to
collaborate with the PGJM received a letter in which a PGJM official wrote that
the military "understands the anxiety that the invitation to appear before a
military authority may have caused you,
which was probably the reason you may have decided not to make an appearance
before us, given that it is
precisely military personnel to whom you attribute the "disappearance" of your
son."[229]

Although the PGJM eventually closed its office in Atoyac de
lvarez, its presence may have had a
lasting impact on the work of the Special Prosecutor's Office there, feeding the climate of distrust toward the
government that exists within the community.According to one official in the Special Prosecutor's Office, the families cited by the PGJM believed that the
Special Prosecutor's Office had given their names to their military
counterparts, thereby violating
their rules of confidentiality.[230]According to another official, the presence of the PGJM near that of the special
prosecutor may have created the impression that the civilian authorities were
working in tandem with the military ones,
thereby compromising their credibility with victims' relatives.This perception,
the official complained, was only
exacerbated when several PGJM officials installed themselves in the Special
Prosecutor's Office one day to solicit testimony from family members who
arrived there.[231]

Instead of conducting its own criminal investigation, the military should have been actively supporting
the work of the Special Prosecutor's Office.The director of the special prosecutor's documentation team, Jos Sotelo,
estimated that, if SEDENA had
collaborated actively with investigators,
they would have been able to completely resolve 85 or 90 percent of the cases.[232]Instead,
because the military has stonewalled,
the process of solving most of these cases has only just begun.

Obstacles to Justice

Inability to detain suspects

A major obstacle to prosecuting these cases has been the
state's failure to execute the majority of the arrest warrants that the special
prosecutor has obtained from judges.Since Mexican law prohibits trying people in absentia, the
prosecutions cannot proceed so long as the accused remain at large.

There are currently thirteen arrest warrants against seven
former officials that have not been carried out.According to the director of the AFI, the agency that is responsible for executing these
warrants, the poor outcomes result
from the fact that the people at large have extensive ties with people within
the political system and law enforcement institutions who make it possible for
them to elude capture.For example, Luis de la Barreda Moreno,
a former director of the DFS, has
been able to elude capture for over two years because he is "part of the
Mexican political system and has the support of the political class."[233]

In the case of Isidro Galeana,
a former judicial police commander in Guerrero state who was charged by the
Special Prosecutor's Office in 2003 with the "disappearance" of Jacobo Njera
Hernandez, Human Rights Watch
received eyewitness reports from other law enforcement agents that he was
protected by members of the local police,
who were serving as his bodyguards when they should have been arresting
him.Galeana was able to remain at large
for almost two months until his death,
by natural causes, in January 2004.

While it may indeed be more difficult to carry out arrest
warrants of former officials who still have strong ties with local and national
law enforcement agencies, it should
not be impossible.Mexican law
enforcement agencies have repeatedly proven their effectiveness in recent years
by arresting some of the country's most powerful and violent drug
traffickers.

Legal Hurdles

Another major challenge for the Special Prosecutor's Office
has been how to develop legal strategies that could overcome two basic legal
hurdles-how to prosecute old crimes that might be subject to statutes of
limitation, and how to apply Mexican
criminal law to egregious human rights violations that were not adequately
contemplated in the penal code at the time they were committed.The strategies the special prosecutor has
pursued have shown very mixed results.

The "Genocide" Cases

The special prosecutor's legal strategy in the two most
emblematic cases-the massacres of student protestors in 1968 and 1971-has
clearly not worked.In both cases, he argued that the crime committed had been
"genocide," and that genocide was
not subject to a statute of limitations.The courts have not accepted either argument.

In the first case the special prosecutor pursued-the 1971
massacre-the Supreme Court upheld a lower court's ruling that genocide is in
fact subject to a thirty-year statute of limitations.But the court did accept an argument
presented by the special prosecutor that two of the accused, Luis Echeverra lvarez and Mario Augusto Jos
Moya y Palencia, could still be
prosecuted since the clock on the statute of limitations had been suspended
during the years their official posts had imbued them with immunity from
prosecution.The Supreme Court sent the
case against these two back to the trial court to determine whether the charges
were sufficiently substantiated to proceed to trial.[234]A month later,
the trial judge ruled that the alleged crime did not constitute "genocide," but instead was a case of "simple homicide"-a
crime for which the statute of limitations had expired,
even for Echeverria and Moya y Palencia.The 1968 case, meanwhile, has suffered a similar fate.The trial court found that the period
established by the statute of limitations has passed.And while the special prosecutor appealed the
ruling, there is no reason to think
this appeal will fare better than the other.

Under international law norms,
the obstacle to prosecution of these cases should not have been the statute of
limitations since, under
international law, genocide is not
subject to one.The problem, from the standpoint of international human rights
law, is that the crime in question
did not constitute "genocide."

According to the Genocide Convention,
an essential element of the crime is that the perpetrators act with the "intent
to destroy, in whole or in part, a national,
ethnic, racial or religious group, as such."This definition was intentionally constructed to exclude cases where the
target is a political group, such as
the groups of student activists targeted in the 1968 and 1971 massacres.Nevertheless,
the special prosecutor attempted to argue that the victims of the massacre
constitute a "national group" because they were a group of Mexican "nationals."[235]In terms of international law, this argument is farfetched.And while the special prosecutor has argued
that under Mexican law it is plausible,
the definition used in the Mexican penal code is essentially the same as that
which is used in the international law.[236]Numerous Mexican criminal lawyers have told
Human Rights Watch that they were unconvinced by the special prosecutor's
interpretation. And, more to the
point, the courts hearing the case
have also rejected it, rendering
this a moot point.

Did the special prosecutor have any better options for
prosecuting these crimes?One
possibility would have been to file charges for "aggravated homicide" rather
than "genocide."There is no question
that the killings fit the definition of this crime.However,
there is some ambiguity with regard to the calculation of the statute of
limitations.According to one interpretation
of the law applicable at the time of the crimes,
the statute of limitations would most likely be thirty years, making it impossible to prosecute most of the
accused, but allowing for
prosecution of Echeverra and Moya y Palencia (using the tolling argument
already endorsed by the Supreme Court).However, the federal criminal
code in effect at the time of the crimes,
combined with a series of non-binding Supreme Court rulings from the era, permit another interpretation of the statute of
limitations that would foreclose the possibility of prosecuting even those two
cases.Fearing that courts would resolve
this ambiguity in favor of the defendants,
the Special Prosecutor's Office chose not to pursue this line of prosecution.

Another option would have been to argue that the killings
constituted "crimes against humanity."The concept of "crimes against humanity" in international law refers to
serious acts of violence, including
murder, torture, and forced disappearance,
carried out in a widespread or systematic fashion against an identifiable group
of persons.[237]Crimes against humanity have been proscribed
in several treaties ratified by Mexico and have existed in customary
international law for over half a century-since well before Mexico's "dirty war."They are,
moreover, deemed to be part of jus cogens-the highest standing in
international legal norms-thereby constituting a non-derogable rule of
international law.[238]

In addition,
prosecutors might have referred specifically to Mexico's obligation under the
Convention on the Non-Applicability of Statutory Limitations to War Crimes and
Crimes against Humanity to argue that their prosecutions could not be barred by
statutory limitations. Article 1 of the Convention states that statutory
limitations shall not apply to crimes against humanity,
"irrespective of the date of their commission."[239]
Moreover, the Convention obligates
Mexico to "undertake to adopt, in
accordance with their respective constitutional processes,
any legislative or other measures necessary to ensure that statutory or other
limitations shall not apply to the prosecution and punishment of the crimes . .
. and that, where they exist, such limitations shall be abolished."[240]

When ratifying the Convention,
however,Mexico
included an "interpretative declaration" to the effect that it would "consider
statutory limitations non-applicable only to crimes . . . committed after the
entry into effect of the Convention with respect to Mexico"-i.e., after Mexico ratified the Convention in
2002.According to the declaration,Mexico's
obligation not to apply statutory limitations would not apply to the cases
under investigation by the Special Prosecutor's Office.Yet prosecutors could have pointed out that
this declaration does not affect Mexico's obligations under the
Convention.[241]Instead,
it represents an interpretation of those obligations that is simply wrong.It is wrong because it directly contradicts
the language of Article 1 that prohibits the application of statutory
limitations "irrespective of the date of their commission."

But if the "crimes against humanity" option makes good sense
from an international law perspective,
it would have represented a major new development for Mexican criminal
law.For Mexican courts to accept an
argument of this sort, the special prosecutor
would still have had to persuade them that an exceptional decision not to apply
statutory limitations in these cases did not violate the prohibition on
retroactive criminal laws, as
established in the Constitution-since the bar on statutory limitations for
crimes against humanity already existed in customary international law when the
acts being prosecuted took place.[242]Making this case to judges who are generally
unversed in international law would have been a difficult task.And it is likely that the judges would make
their determination based on the misguided interpretive declaration.

In this sense, a
potentially powerful legal strategy for prosecuting these cases was undercut by
the Mexican government's willingness,
when ratifying the relevant international treaties,
to compromise its commitment to the fundamental international norm that crimes
of this nature are not subject to statutes of limitations.

The Forced Disappearance Cases

Unlike with the genocide cases,
the Supreme Court has given a green light to prosecuting cases of forced
disappearance that occurred decades ago.In fact, it has issued two
separate rulings authorizing the prosecution of two different types of
"disappearance" crimes despite the passage of time.

The first ruling came in November 2003,
after the special prosecutor sought his first arrest warrant in a forced
disappearance case, charging Nazar
Haro and other officials with the "abduction" of Jess Piedra Ibarra.A trial court judge refused to grant the
warrant on the grounds that the statute of limitations had run out.But the special prosecutor appealed and won a
ruling from the Supreme Court that held that the time allotted by the statute
of limitations for abduction cases did not begin to run out so long as the
victim remained missing.

The second ruling came in July 2004,
when the Supreme Court ruled on a constitutional challenge presented by the
government of Mexico City to the "interpretive declaration" that Mexico had
added when subscribing to the Inter-American Convention on the Forced
Disappearance of Persons.The Court held
that the crime of forced disappearance is of a permanent and continuous
nature-i.e., it does not end and
continues to take place as long as the fate of the victim of forced
disappearance remains unknown.As a
consequence, the Supreme Court
concluded that the statute of limitations only begins to run out when the
victim of forced disappearance appears (dead or alive) or when this person's
fate becomes known.[243]

The Special Prosecutor's Office was therefore clear to
prosecute the old forced disappearance cases either as "abductions" or as
forced disappearances.The special prosecutor
chose the former option, reasoning
that judges would reject charges of forced disappearance on the grounds that
the crime was not on the books at the time the victims were abducted (and the
crime of abduction was).[244]This concern appears to have been misplaced, however,
since the Supreme Court's 2004 ruling on the issue of the statute of
limitations, which created binding
case-law, made clear that the crime
of forced disappearance continues to be committed on a daily basis, so long as families do not know what happened to
their loved ones.Even though the
criminal code that was in effect in the 1970s did not include the crime of
forced disappearance, the current
code does include it, and it applies
to the cases in which victims remain "disappeared" today.

The decision to press charges of "abduction" could create
other serious problems for the prosecution.As the Mexican NGO Comisin
Mexicana de Defensa y Promocin de los Derechos Humanos has pointed out in
a petition pending now before the IACHR,
the penal code appears to indicate that the crime can only be committed by
non-state actors (particulares), or by state actors who are not acting in their
official capacity.[245]Yet in the majority of the "disappearance"
cases, it appears that the
perpetrators were indeed acting under color of law,
carrying out a government policy,
with authorization and support of the state.

Developing Viable Legal Strategies

When the Special Prosecutor's Office was created in 2001, it was already clear that it would face enormous
legal hurdles.The most obvious of these
was the problem of statutes of limitations.President Fox himself recognized this early on in the process when he
said, in November 2002, that it might be impossible to prosecute most of
the cases because of the passage of time.[246]

Human Rights Watch explored these legal hurdles in detail in
our 2003 report,Justice in Jeopardy, and concluded that,
under the circumstances, the task of
developing a viable legal strategy was far too ambitious and complex to leave
entirely to the Special Prosecutor's Office.[247]Forging viable legal strategies would entail
breaking new ground within a criminal justice system that was poorly equipped
to deal with crimes of this nature.And
it wouldn't be enough merely to choose the legal arguments that were legally
sound.Prosecutors would also need to
convince judges that their novel legal arguments were consistent with Mexican
law. They would need to impress upon judges the weight of Mexico's international obligations
to prosecute human rights violations.In
short, prosecuting these cases would
require pushing Mexican criminal law in new directions.It would require overcoming the very legal
doctrine and habits that had, for
decades, served to perpetuate the
culture of impunity.

What was needed,
we argued in the 2003 report, was a
collectiveeffort by the government's
top legal experts and the country's most experienced and influential
jurists.The best way to strengthen the
prosecution's arguments would be to have them be scrutinized, refined,
and publicly endorsed by the country's most experienced and knowledgeable
jurists. Ideally, when the cases
went to trial, it would be clear
that these legal arguments reflected not only the views of the prosecutor, but also the views of the Fox administration and
the broader legal community.

To that end, we
recommended that the president convene a task force or commission to examine
the issue of statutory limitations and any other legal obstacles that could
limit the prosecution of past abuses.This group would consist of distinguished jurists,
as well as lawyers representing relevant private and state institutions, including the Foreign Affairs and Interior
Ministries, the PGR, the PGJM,
the CNDH and, of course, the Special Prosecutor's Office. Its aim would be
to generate greater clarity and consensus about the nature of the legal
obstacles, and to assess-in light of
both national and international law-the advantages and disadvantages of the
various prosecution strategies that the Special Prosecutor's Office might adopt
to overcome them.

The Fox administration did not give this issue the attention
it deserves nor attempt the kind of coordinated approach outlined above.
Instead it chose to leave the monumental challenge of overcoming the legacy of
impunity at the heart of the Mexican legal system on the shoulders of a single
prosecutor and his staff.It is
impossible to know whether a presidential task force of this sort would have
necessarily ensured greater success in prosecuting these cases within Mexican
courts.But it almost certainly could
have led to greater clarity about the legal issues at stake, and helped to expose the deficiencies of the
Mexican legal system that have contributed to the ongoing impunity associated
with these crimes.

Military Justice

A third major obstacle to prosecution has been the Mexican
military.In addition to stonewalling
and interfering with investigations (as described above),
the military has pursued its own prosecution of some of the "dirty war" crimes, interfering with and potentially sabotaging the
work of the civilian prosecutors.

In September 2002,
the PGJM indicted three military officers for their role in some of the
"disappearance" cases under investigation by the special prosecutor.This indictment appeared to represent an
important-if long overdue-recognition by the military of its role in past
abuses.Yet in fact it was at best a
grave mistake: cases like these do not belong in military courts.

International human rights bodies have repeatedly argued
that military tribunals should not be relied upon to prosecute human rights
abuses, and called on states to
transfer jurisdiction over human rights cases from military to civilian
authorities.[248]In the case of Mexico,
the U.N. Special Rapporteur on Torture found that Mexican military personnel
who committed abuses were "generally protected by military justice"and
concluded that "[c]ases of serious crimes committed by military personnel
against civilians, in particular
torture and other cruel, inhuman or
degrading treatment or punishment,
should, regardless of whether they
took place in the course of service,
be subject to civilian justice."[249]

Despite this international consensus,
Mexican military justice officials have continued to assert jurisdiction over
army abuse cases.They note that the
Mexican Constitution establishes military jurisdiction for "offenses against
military discipline,"[250] and rely
on the fact that the Code of Military Justice provides an expansive notion of
such offenses that includes "offenses under common or federal lawwhen
committed by military personnel on active service or in connection with active
service."[251](When ratifying the Inter-American Convention
on Forced Disappearance of Persons,Mexico
submitted a reservation to the treaty's prohibition on asserting military
jurisdiction over cases of forced disappearance.[252])

In this particular case,
however, the assertion of military
jurisdiction also violates the Mexican Constitution,
which holds that "military tribunals shall in no case and for no reason
exercise jurisdiction over persons who do not belong to the army," and that "[w]henever a civilian is implicated in
a military crime or violation, the
respective civilian authority shall deal with the case."[253]Accordingly,
when both military and civilians are suspected of committing a particular crime, the case goes to civilian courts.[254]In the "dirty war" cases it is prosecuting, the PGJM has recognized the participation of
civilians in the commission of the crimes,
yet it has persisted with the prosecutions.[255]

But several factors raise questions about the seriousness of
this commitment.One is the timing:
after three decades of inaction, the
PGJM chose to prosecute these crimes only after the Special Prosecutor's Office
began investigating them.Another is the
indictment itself: it originally charged the defendants with the deaths of 143
people, but it turned out that as
many as seven of the named victims are in fact alive today.[256]A third is the fact that the indicted
generals were already in jail facing drug charges.A fourth factor,
mentioned above, is the fact that by
asserting jurisdiction over the case,
the PGJM was violating the Mexican Constitution.

Whether or not the PGJM is serious about prosecuting these
cases, its assertion of jurisdiction
presents serious obstacles to the Special Prosecutor's Office.In addition to the impact, described above,
that the military investigations have on the Special Prosecutor's Office in
Guerrero, there is a serious risk
that, should military trials end in
acquittals, the prosecution of these
officers by the Special Prosecutor's Office would be precluded under the
principle of non bis in idem-the
principle, known as "double
jeopardy" in Anglo-American jurisdictions,
according to which a person cannot be tried twice for the same crime.

The likelihood of such an outcome is increased by the fact
that very few of the relatives and surviving victims in Guerrero have been
willing to testify before the PGJM,
thus denying it of evidence that may be necessary to obtain convictions.The main reason for their refusal appears to
have been the fear described above.Several Atoyac residents told Human Rights Watch that they disregarded
the request for testimony from the PGJM because they were scared of the army,and the one person Human Rights Watch
spoke with who had provided testimony confirmed that most victims' relatives
she knew were too scared to do so.[257]Another woman who refused to testify
explained that she could not believe that the military had any intention of
conducting a serious investigation."They
ignored us back then," she said, "why would it be different now?"[258]One man who reported having been tortured by
soldiers-who also forcibly "disappeared" his son-said he would never go to the
PGJM since it was the military that had harmed him.[259]Another woman asked rhetorically, "How am I going to go to the PGJM when I'm
denouncing an army general?"[260]

Unfortunately, it
is not merely the military prosecutors and judges who insist that these cases
be tried within the military justice system.Their position is shared by some civilian judges as well, as was made clear last year in one of the most
prominent forced disappearance cases from Guerrero state.

In August 2005,
the special prosecutor filed charges against Gen. Francisco Quirs Hermosillo, accusing him of being responsible for the
"disappearance" of Rosendo Radilla.The
judge issued an arrest warrant, but
then turned the case over to the military justice system,
arguing Quirs Hermosillo should be tried in a military court since he was
being prosecuted for an act that he had allegedly committed while on duty.Despite two appeals by the Special
Prosecutor's Office, the case was
sent to military courts.[261] The
military judge that received the case actually sought to return it to civilian
jurisdiction, arguing that he did
not have jurisdiction to evaluate the former general for these acts.[262]But a federal civilian court ruled once again
that the case did in fact belong within the military justice system.[263]

Given that military officers are implicated in many, if not most,
of the forced disappearance cases,
the precedent that has been set here is likely to have profoundly negative
ramifications for Mexico's
efforts to establish accountability for past abuses.The country will be once again leaving the
task of justice in the hands of the institution that carried out the crimes in
the first place.It will, in other words,
be perpetuating the old system in which those involved in public security are
not bound by the rule of law.

Shortcomings of the Special Prosecutor's Office

The Special Prosecutor's Office was seriously understaffed
and under-funded during the first year and a half of its operation.The chief problem at the outset was shortage
of personnel.The office operated with
thirty-five prosecutors during its first years-not enough,
according to officials within the Special Prosecutor's Office, to cover the heavy load of difficult cases.In addition to the shortage of staff, the Special Prosecutor's Office had been plagued
by a lack of material resources.One
veteran prosecutor told Human Rights Watch at the time that in his fifteen
years working with the PGR, he had
never seen such a lack of resources.[264]

During the second year of operation,
the number of prosecutors assigned to the Special Prosecutor's Office was
increased to fifty-seven, and in the
following months the special prosecutor and his staff reported an increase in
resources.In January 2006, the directors of each prosecutorial team told
Human Rights Watch that they had adequate staff and resources to carry out
their work.

Yet the lack of resources remained acute in one area: the
documentation team.During the first
year and a half of operation, the
research team consisted of only five members.The director of the team at the time told Human Rights Watch that, with this number,
it was virtually impossible to do a "thorough and irrefutable job."[265]

The staff of the documentation center has since grown.In January 2006,
it included twenty-five people.Yet the
director of the area, Jos Sotelo, reported that their salaries were too small to
attract experienced researchers.Moreover, it was difficult to
retain people because of the failure of the PGR to pay them on a regular
basis.Due to administrative
mismanagement, the researchers were
forced to go many months without being paid for their work.Many were hired over the course of 2004.They were not paid until April 2005 for their
work in 2004, and not paid for the
work completed during the first half of 2005 until September of that year.At this writing,
they still had not been paid for the work done since July 2005.

In addition to working without pay,
the researchers were forced to work without basic resources.According to Sotelo,
they also had no operating budget and frequently had to pay their operating
expenses (including costly travel) out of their own pockets."The conditions weren't there for doing this
work," Sotelo told Human Rights
Watch."The obstacles made it almost
impossible."[266]

The documentation team's efforts might have benefited from
the active participation of the Special Prosecutor's Support Committee.Indeed,
when President Fox announced the creation of the office in 2001, it appeared that this committee would serve at
least part of the function of a truth commission-by involving prominent
citizens in the efforts to investigate and document the past abuses.Yet the special prosecutor chose not to
engage the committee in this way.And, as a result,
it has played only a secondary role in the process to date.

Recommendations

Months before creating the Special Prosecutor's Office, the Fox administration insisted that it would not
pursue any initiative to address past abuses that might undermine the existing
institutions of the justice sector. But,
by allowing the special prosecutor to falter,
the government has merely helped to perpetuate the underlying problem that
created the need for a special initiative in the first place: the failure of
those institutions to assume their responsibility for promoting accountability
in human rights cases. If the work begun by the Special Prosecutor's
Office is never completed, the
initiative will ultimately serve to reaffirm the worst practices of a justice
system that allowed the most serious human rights violations to go unpunished
for decades.

Such an outcome is still,
by no means, inevitable.The work of the Special Prosecutor's Office
can be salvaged.But it will require
taking aggressive measures to overcome the obstacles to accountability
identified in this chapter.

1) End military obstruction

The one state institution that has the most to contribute to
the investigation and prosecution of these crimes is the Defense Ministry.But,
instead, it has chosen not to
collaborate in a meaningful fashion,
thereby defying the presidential order that established the Special
Prosecutor's Office and violating its obligation to Mexican society to uphold
the rule of law.

This open defiance of the civilian government represents one
of the starkest examples of Mexico's
ongoing failure to establish democratic accountability.Ending it,
therefore, is crucial not only to
promote accountability for past atrocities,
but also to advance the country's transition to democracy.

Toward that end,
the civilian government must order the minister of defense to take steps to
ensure that the PGJM provides full support to the prosecutors handling cases of
past atrocities.Specifically, the defense minister should order the PGJM to do
all it can to locate documents and information requested by prosecutors
investigating human rights cases.The
PGJM should also cede jurisdiction over cases involving egregious human rights
abuses to civilian prosecutors.

2) Expand Tools Available to Prosecutors

The Special Prosecutor's Office has had almost no success in
obtaining useful information from current and former security forces.It is not surprising that these officials
refuse to collaborate: they have little to gain and potentially much to lose by
doing so.And,
so long as prosecutors are unable to offer meaningful incentives for
collaboration, it is unlikely they
will ever break this wall of silence.

A second critical step to ensuring successful prosecutions
of these cases is to grant prosecutors the power to provide incentives to potential
witnesses.This could take the form of a
new law that would allow prosecutors to offer reductions in jail sentences to
individuals who provide information about the human rights crimes under
investigation. Such authority is available to and regularly employed by
prosecutors in the United States (in the form of "plea bargaining") and
recently has proved effective in Peru,
where it was granted to the special prosecutor charged with investigating
abuses committed under the regime of Alberto Fujimori.

Another measure that could increase prosecutors'
investigative powers is to grant them the possibility of offering monetary
rewards to individuals who provide information that helps to determine the fate
of the people "disappeared" during the "dirty war."Rewards should also be made available to
individuals who provide information that leads to the capture of suspects for
whom arrest warrants are outstanding.To
complement these incentives for witnesses and suspects to testify, prosecutors must be able to offer a "witness
protection" program to ensure the safety of individuals that decide to
collaborate with the investigations.[267]

The law would have to be designed with great care to prevent
abuses-by either suspects or prosecutors.It would not be applicable to people who bear major responsibility for
human rights violations, but rather
to minor offenders who played a small role in crimes conceived by others.The law would also need to clearly establish
the obligation of every person and government agency that holds valuable
documentation to share with prosecutors documents that could serve as evidence
in trial.

3) Create a Truth Commission

A final crucial step for reinforcing efforts to prosecute
these cases is to establish a truth commission that has the resources, expertise,
and independence necessary to advance the investigation that the Special
Prosecutor's Office has begun.

There are several reasons for why creating an independent
truth commission makes good sense today.The first is the difficulty of the research.Given the enormous amount of information in
the National Archive, and the
difficulty of sifting through it,
the job requires a team of top-notch researchers,
with the necessary resources,
experience, and expertise.

A second reason for a truth commission is that much of the
most valuable documentation includes material that is likely to be restricted
to ordinary researchers on the grounds that it contains "personal data."Indeed much of this information should be
restricted, such as the reports on
declarations made under torture,
which involve allegations, true and
false, about neighbors and
friends.According the director of the special
prosecutor's documentation team, the
material is explosive and needs to be handled with utmost care.A truth commission would provide the
institutional and legal framework in which expert researchers could gain
unlimited access to this material without violating the privacy rights of
individuals.

A third reason has to do with credibility.Several journalists who worked extensively on
these issues have told Human Rights Watch that they believe that there are
former military and other officials who might be willing to turn over
information in their possession (such as files from personal archives), but only if they believed the recipients would
first, respect their
confidentiality; and second, put the
information to good use.In other words, they would be willing to assume the risks of
helping Mexico
clarify these crimes if they could lessen that risk and believed the risk was
not undertaken in vain.In short, they would be more likely to turn over information
to an investigative body if they believed that the investigation were going to
lead somewhere.

A truth commission will only be worthwhile, however,
if it is done right.It must be an
independent, non-partisan body, made up of knowledgeable and prestigious
members.It must also be allocated the
resources necessary to conduct thorough and fair investigations. It must be
required to operate with full transparency.And it must be granted the legal authority to obtain documents and
cooperation from other government institutions. Anything short of this will
produce a commission that lacks the credibility needed to carry out its tasks
effectively.

Most importantly,
the truth commission should not be conceived of as a substitute for
prosecutions.Its aim should be to
complement and strengthen the work of the prosecutors handling these
cases.Specifically, when it obtains incriminating evidence, it should transfer it directly to the pertinent
judicial authorities.

If President Fox or his successor offers Mexico a truth commission as a consolation
prize-and gives it the same half-hearted support that the Special Prosecutor's
Office has received-then Mexico
will merely end up with two failures instead of one.

V. Law Enforcement:
Ongoing Abuses that Undermine Public Security

If Mexico
no longer engages in political violence as a matter of state policy, it does still tolerate,
encourage, and-in some cases-even
mandate human rights abuses in the name of public security.The most notorious of these abuses is the use
of torture by law enforcement agents to obtain confessions from criminal
suspects.Another is the systematic
misuse of preventive detention that results in innocent people being locked up
with hardened criminals for months on end.

One of the most important initiatives of the Fox presidency
has been a proposed overhaul of the justice system that would-among other
things-address the root causes of these two problems.While the reform package also contains
several flawed provisions, the
specific measures aimed at curbing the use of torture and excessive use of
preventive detention are urgently needed.

Unfortunately,
these proposed reforms have languished in Congress for over two years, and their prospects for passage in the near future
do not seem promising.That could change, however,
but only if some of the country's political leaders prove willing to publicly
counter what is the single most salient obstacle to progress in this area: the
common misperception that public security and human rights are conflicting
priorities.

Public insecurity is a top concern of the Mexican public, as well it should be.Mexicans have a fundamental right to
protection from crime-as well as a right to justice when they are victims of
crime.Yet there is a broad consensus in
Mexico
today that the state has largely failed to provide either.This consensus has fueled widespreaddiscontent within Mexican society, which manifested itself most dramatically during
the Fox presidency in one of the largest public demonstrations in recent
Mexican history-the 2004 Citizen's March Against Delinquency and Impunity.

Politicians and public security officials routinely respond
to this legitimate demand by promising to "get tough" on crime.They pass laws imposing harsher
sentences.They boast of the number of
"criminals" thrown in jail every year.They increase the number of crimes for which preventive detention is
mandatory.And they disregard calls for
the eradication of abusive practices like the use of torture and the misuse of
preventive detention.

While it is one thing to be tough,
it is quite another to be effective.The
human rights components of Fox's justice reform proposal have encountered
resistance because they appear to hinder the political imperative to get tough
on crime.Yet,
in fact, the measures aimed at
curbing abuses are needed not only to promote human rights, but also to make the country's criminal justice
system more effective in promoting public security.

Take torture, for
example.The main reason many Mexican
law enforcement agents continue to practice torture is that it allows them to
obtain confessions that can be used to convict people at trial.It is easier,
they find, to beat a confession out
of someone than to conduct a serious investigation.The victims are often unable or unwilling
(due to fear) to prove the abuse took place.And judges routinely accept the coerced confessions as proof of guilt, even when the victims retract them later at
trial.The result is a travesty for
human rights and public security: innocent people confess to crimes they didn't
commit, while those who did indeed
commit the crimes go free.

The Fox proposal would curb this practice by removing the
perverse incentive that promotes it.A
modification of Article 20 of the Constitution would establish that only
confessions given directly before a judge could be used to convict someone of a
crime. The coerced confession extracted in a backroom or basement corridor
would no longer be admissible at trial.

Opponents of the measure argue that it would weaken the hand
of law enforcement-and thereby strengthen the hand of criminals.But they are wrong.Rather than undermining prosecutors, the measure would merely force them to do their
job better.Unable to rely on coerced
confessions, they would need to
conduct more thorough investigations in order to obtain convictions.

The systematic misuse of preventive detention presents a
similar challenge.Under current law in
most parts of Mexico, anyone charged with a "serious crime" is
automatically jailed until trial.A
judge has no discretion to grant provisional liberty to these suspects-not even
to those who seem unlikely to elude justice and pose no apparent danger to
society.Over the years, popular demand for anti-crime measures has
prompted legislators at both the state and federal level to expand the list of
these "serious" crimes to ever more absurd proportions.So,
for example, in the state of Jalisco
today, a robbery carried out by more
than one person at night is a "serious" crime-which means two men charged with
robbing a chocolate bar after sunset will automatically face months in prison
while awaiting trial.

The result: more than 40 percent of prisoners in Mexico
have notbeen convicted of the crime
for which they are being held; many of these prison inmates have been charged
with only nonviolent or relatively minor crimes; many will eventually be
acquitted; and many pose no clear threat to society.Under international law,
they are entitled to provisional liberty.But in Mexico, they are locked up for months on end, often with convicted criminals.

The Fox proposal has taken an important first step toward
reducing this abusive practice at the federal level by allowing federal judges
to grant provisional liberty in cases involving some "serious" crimes.The proposal also calls for a reform of the
Mexican Constitution that would establish a "presumption of innocence" for
individuals not convicted of a crime.This constitutional guarantee could be used to compel further changes in
federal criminal law, as well as
changes in the criminal law of the states to reduce the excessive use of
preventive detention at the local level.

As with the anti-torture reform proposals, opponents argue that the measures aimed to curb
preventive detention would weaken law enforcement.But once again,
they are wrong.As with torture, the excessive use of preventive detention
constitutes a serious threat to public security.The cost of incarceration of tens of
thousands of nonviolent prisoners diverts public funds that would more wisely
be invested in efforts to combat violent crime.It also contributes to the severe overcrowding of Mexican prisons, which undermines the ability of penal authorities
to control inmate populations.This, in turn,
results in a prison system where petty criminals-not to mention innocent
suspects-must endure months living under the influence and even supervision of
hardened criminals.The end result is a
prison system that functions as something of a finishing school for
delinquents.

The measures proposed to address the problems of torture and
excessive use of preventive detention are part of a much broader reform package
aimed at establishing an adversarial system of justice in Mexico.Not all the measures included in this package
are positive from a human rights perspective.In fact, some are quite
dangerous, such as a proposed reform
of the Constitution that would effectively suspend basic due process guarantees
in cases involving "organized crime."Even the measure that could help reduce the excessive use of preventive
detention contains serious shortcomings,
as it does not end the automatic application of preventive detention for many
"serious" crimes, nor for "minor"
crimes when the accused cannot guarantee the payment of reparations to the
victim.

Yet, however
flawed the reform package may be,
the measures to address the root causes of torture and the misuse of preventive
detention represent a crucial break from the past.Both are imperative for promoting human
rights and public security in Mexico.What the country now needs is for someone to
show the political leadership necessary to persuade the public of the proposed
reforms' importance-and thereby transform them into a political imperative.

Torture

Among the human rights scandals that erupted during the Fox
presidency, three of the most prominent
were the prosecution of environmentalist peasants in Guerrero, the crackdown on protestors in Guadalajara,
and ongoing impunity for the Ciudad Jurez murders.On the face of it,
the three have little in common. But in fact,
despite their obvious differences,
all three share one important feature with countless other human rights cases
that preceded them: the use of torture.

The Environmentalist Peasants of Guerrero

One of the earliest abuse cases to receive national and
international attention during the Fox presidency involved Rodolfo Montiel and
Teodoro Cabrera, two peasant leaders
involved in environmental activism who were detained in 1999 by soldiers in the
mountains of Guerrero.The two were held
illegally by the military for two days and,
when finally presented before civilian authorities,
confessed to having been caught with the illegal drugs and weapons that the
soldiers claimed to have found on them.Later they recanted these confessions before a judge, claiming they had been subjected to torture.

The CNDH would eventually determine that the soldiers had
planted at least some of the evidence that the two men later confessed to
possessing.[269]By planting it,
the soldiers gave themselves grounds to detain the men,
and then by failing to hand them over promptly to the civilian authorities, they had the opportunity to torture or intimidate
them into making false confessions.After the military refused to cooperate with investigators, the CNDH also concluded-based on a legal
presumption-that the two men had in fact been tortured.[270]

Despite the CNDH's findings,
however, a judge convicted the two
men, basing his decision at least in
part on their retracted confession,
as well as on the planted evidence.[271]It was only after a sustained national and
international campaign brought attention to the case that this miscarriage of
justice was rectified and the two men were released.

Crackdown in Guadalajara

On May 28, 2004, in Guadalajara, after some participants in an anti-globalization
demonstration clashed with security forces,
Jalisco state police rounded up over a hundred people,
some as they sat in public parks or strolled down the street, and some even as they were being treated in a Red
Cross clinic.The majority of the
detainees were then held illegally,
incommunicado, for over two
days.During this time, more than seventy people were arbitrarily
detained.Fifty-five of them were
subject to cruel and inhumane treatment,
including nineteen who were tortured with the aim of coercing them into signing
self-incriminating statements and providing information.[272]

The experience of twenty-six-year-old university student
Norberto Ulloa Martinez was typical."I
was taken alone to a room by four policemen,"
Ulloa told Human Rights Watch."They punched
and kicked me in the head, the back, the legs,
and knees and threatened to kill me if I didn't sign the confession they had
written. One of them carried a pistol. He said,
'if you don't sign, I will kill
you.' I signed the declaration."[273]

Impunity in Ciudad Jurez

A third prominent case involved law enforcement authorities'
handling of cases involving the murder and "disappearance" of women in Ciudad Jurez,Chihuahua.Responding to mounting local, national,
and international pressure to address the hundreds of cases of murdered and
missing women, local authorities
relied on coerced confessions to generate scapegoats.In 2003,
the CNDH reported having found eighty-nine instances in which the suspects in
these crimes had "spontaneously confessed" before the public prosecutor, only to recant the confession before a judge, claiming that they had been subjected to torture.[274]

One case involved two bus drivers who were detained in 2001
and confessed to raping and murdering eight young women and dumping their
bodies in a cotton field-only to recant as soon as they were brought before a
judge.A medical examination
administered after they had spent a day in police custody found they had
suffered first degree burns on their genitals-injuries that had not been
observed in another medical examination shortly after their detention.This medical evidence,
along with the fact that entire lines in the men's separate police declarations
were identical, led the CNDH to
conclude that they had in fact been tortured.[275]Despite this finding-and despite the fact
that a forensic expert reported having been pressured to plant evidence against
the two men, and the fact that DNA
tests of the presumed victims did not match the corpses the men had allegedly
dumped; and the fact that one of their defense attorneys was gunned down by
police in the street; and the fact that one of two defendants later died under
suspicious circumstances in detention-in October 2004 the surviving defendant, Victor Javier Garca Uribe,
was sentenced to fifty years in prison for the murders. In July 2005, after an
appeal, Mr. Garca Uribe was freed due
to lack of evidence.[276]

Another suspect who suffered similar abuse is David
Meza.In May 2003,
after hearing that his teenage cousin had "disappeared" in Ciudad Jurez, twenty-six year-old David Meza traveled from his
home in Chiapas
to help his family search for her.He
soon became involved in local efforts to press for progress on the missing
women cases, organizing acts of
civil disobedience and publicly ridiculing the state attorney general.In July,
police announced that they had found his cousin's body and summoned Meza to
police headquarters.Meza then confessed
to the murder-but only, he claims, after two days of torture.He told Human Rights Watch that he was
subject to electrical shocks, as
well as cuts on his scrotum, chest, and arms,
and deprived of sleep for two days.Even
though he recanted his confession before the judge,
and even there was no other evidence linking Mr. Meza to his cousin's murder, he has been in preventive detention for over two
and a half years.[277]The Chihuahua State Human Rights Commission
has certified that Mr. Meza was abused while in custody of the state judicial
police and issued a recommendation in April 2005 requesting the state
prosecutor's office to initiate legal action against the responsible officers.[278]

Only the Tip of the Iceberg

While those three cases received unusual attention within Mexico
and abroad, they were hardly
isolated incidents.In Chihuahua,
for example, the abusive treatment
of detainees extends far beyond suspects in the cases of killings of women. In
its 2003 report on Ciudad Jurez,
the CNDH observed that the use of physical or psychological violence to obtain
confessions appeared to be a regular practice within the state prosecutor's
office.[279]And indeed,Chihuahua's
current attorney general, Patricia
Gonzlez, told Human Rights Watch
that during her twenty-four years as a criminal judge,
she had encountered cases of torture "all the time."[280]

A disturbing example from Chihuahua involves the case of "Juan Jos
Prez," who was arrested in 2003 by
five police officers when he was in his cell-phone store in Ciudad Jurez.[281]Prez told Human Rights Watch he was
illegally detained for two days and physically and psychologically abused to
confess to having committed a kidnapping. According to the state prosecutor's
office, Prez remained in preventive
detention until April 2005, when a
judge declared he was innocent.In
another 2003 case from Chihuahua, police forcibly removed "Andrs Martnez" from his
house one night in a town near ChihuahuaCity.They brought him to a government office where
they tortured him for three hours,
insisting he confess to a kidnapping.[282]According to the state prosecutor's office, which has initiated proceedings against the police
officers suspected of carrying out the abuse,
they beat him severely, gave him
electrical shocks in his genitals,
inserted a broom stick in his anus,
and placed a plastic bag on his head until he passed out.

Similarly, in
Jalisco, the use of torture has not
been limited to the case of the anti-globalization protestors.In July 2003,
for example, Eduardo Guadalupe Jaime
Daz was detained in Zapopan, Jalisco,
and taken to the state prosecutor's office.According to the State Human Rights Commission,
Daz was tortured by seven police officers who beat him,
partially suffocated him with a plastic bag,
and applied electrical shocks to various parts of his body, seeking to induce him to confess he had robbed a
beauty parlor.[283]

In Guerrero, as
well, there have been torture cases
that have escaped outside attention. In February 2000,
for example, lvaro Garca vila, Juan Garca vila,
and Alfredo Garca Torres were arrested by soldiers in their homes in the
community of Las Palancas and taken to a military base.lvaro Garca vila and Garca Torres told
Human Rights Watch they were badly beaten and tortured at the military base.
Garca Torres said that soldiers beat him,
threatened to kill him, and placed
bags over his head to suffocate him. The soldiers accused him of having killed
several police officers in 1999.[284]
They also accused him of being a guerrilla and demanded he tell them the
whereabouts of the guerrilla commander. Garca vila also reported being beaten
and asked about the commander. That night,
they were transferred into the custody of the public prosecutor in Zihuatanejo.
They were beaten again and forced to sign confessions.[285]

Chihuahua, Jalisco,
and Guerrero are by no means the only states where torture is a chronic
problem. State human rights commissions have documented cases that show
widespread use of torture throughout Mexico.For example,
in June 2001, Moiss Alberto Arceo
Prez, accused of robbing a vehicle, was tortured by judicial police officers and
prosecutors in Yucatn.[286]In April 2003,
Juan Carlos Martnez Berrios,
alleged to have kidnapped his cousin,
was tortured by prosecutors in the State of Mexico; Martnez Berrios died a few
days later as a result of the torture.[287]In December 2003,
Esteban Gregorio Morales Martnez and Martn Vsquez Prez were tortured by
judicial police in Oaxaca
seeking to establish they had committed a robbery.[288]In March 2004,
Omar Ibarra valos, accused of
robbing car radios, was tortured by
judicial police officers in Nayarit.[289]In December 2004,
Ral Silva Espinosa was tortured by judicial police officers in Quertaro
seeking to establish he had participated in a robbery.[290]

State commissions continue to receive regular reports of
torture.For example, in 2005,
the Oaxaca State Human Rights Commission received seven complaints in which
torture is alleged.Human Rights Watch
obtained documentation on one of these complaints,
which refers to the case of thirty-five-year-old Feliciano Julin Gmez
Ortiz.Gmez Ortiz,
accused of having stolen a cargo of Nestl products,
was tortured in July 2005.Four police
officers arrived at his car repair shop in Tlaxiaco,Oaxaca,
searching for someone else. When they
could not find that other person,
they took him instead.After he was
tortured for three hours by two police officers,
one of them pulled out a picture from a drawer and told the other one: "this is
not the asshole we are looking for."[291]

According to a 2003 CNDH study,
there were some 588 cases of torture (many involving more than one victim)
documented by state and national human rights ombudsmen between 1990 and 2003.[292]A 2005 CNDH general recommendation on the
practice of torture reiterated that the problem of torture in the justice
system persists.[293]

There are good reasons to believe,
moreover, that the documented cases
represent only a small fraction of the total number.One is the fact that torture is notoriously
difficult to document.There are usually
no witnesses to the crime, and it
often leaves no physical scars on the victim.Consequently, the only
evidence of torture is likely to be the word of the victim, which is often insufficient to prove that the
crime took place.

And even this evidence may often never emerge, since a principal effect of the torture-and often
its main objective-is to intimidate the victim into silence.For example,
"Andrs Martnez" told Human Rights Watch that he is now "scared of
everything." A year after he pressed charges against the police officers that
had tortured him, a man came to
visit him and "suggested" he withdraw his case.He did not do that, but he
did modify his declaration to remove the statement saying that he had
recognized the torturers.Another man
who had been tortured at the same time later told Martnez that his fear of
reprisals had deterred him from doing anything that would draw attention to his
torture, including even going to the
hospital to get medical assistance.[294]

A second consideration that may explain why torture is still
such a widespread phenomenon in Mexico
is that it is very rarely sanctioned.Although there are a series of norms that were adopted to initiate cases
against public servants that commit acts of torture,
the CNDH has recently held that there is a very high rate of impunity for
torture practices in Mexico.[295]

Those states that try to prosecute these cases face
considerable obstacles.In Oaxaca, for example,
a special office has been set up within the state prosecutor's office to handle
torture allegations.Yet officials from
the state human rights commission told Human Rights Watch that this office
routinely relabeled these as "abuse of authority" cases (which carry lighter
sanctions).[296]In Chihuahua, the current state attorney general set out to
investigate torture allegations when she took office in 2004.But officials from the office in charge of
these investigations told Human Rights Watch that progress had been limited by
a variety of factors-including the fact that they received information on
torture cases a long time after the alleged abuse took place, as well as the fact that police officers were
reluctant to collaborate with the investigation or arrest their colleagues.[297]

The Incentive to Torture

Yet the reason torture continues in Mexico is not so much because
people can get away with it.It is, rather,
because torture fulfills a significant function within the Mexican criminal
justice system: it generates confessions.According to the CNDH study,
in over 90 percent of the cases documented by the federal and state ombudsmen, torture had been used to force a confession from
the victim.[298]

Forced confessions can serve multiple purposes.One is to provide evidence-both the
self-incriminating statement itself and any leads a victim might provide to
other witnesses and physical evidence-that the victim is guilty of a
crime.But if torture is typically
intended to force the truth out of a criminal,
it's just as likely to force a lie out of someone who is innocent.It can,
consequently, serve an even more
sinister purpose-providing law enforcement agents cover for their own criminal
activities.When,
for instance, agents illegally
detain people without an arrest warrant,
they can force the detainees to say they had been caught committing a
crime-i.e.,in flagrante delicto-thereby justifying the detention.In this way,
torture facilitates the practice of arbitrary detention-which is, itself,
a chronic human rights problems in Mexico.[299]

Law enforcement agents know that even if a torture victim
retracts a confession later at trial,
the judge is likely to give greater weight to the confession than to the
retraction, in accordance with Mexico's
peculiar version of the "principle of procedural immediacy."In other countries,
this principle is understood to mean that the evidence presented directly
before the judge is likely to be more reliable and,
consequently, deserves greater
weight as evidence in a trial.But
Mexico has turned the concept on its head,
with judges giving greater weight to statements made most "immediately" after
the crime-i.e., beforethe suspect appears in front of the
judge.According to the Mexican Supreme
Court, first declarations have more
evidentiary value since they are made without any external influence and
without the possibility to reflect on what happened.[300]

In a series of rulings in 1995,
the Supreme Court held that a confession can only serve to prove guilt when it
is corroborated by other evidence.[301]But these rulings have not changed the practice
on the ground. Judges still regularly apply the Mexican version of the
principle of procedural immediacy.As a
result, instead of serving as a
procedural guarantee for the accused,
in practice, the principle of
procedural immediacy in Mexico
does precisely the opposite-facilitating,
if not encouraging, abuse.

Most of the torture cases mentioned above fit this
pattern.lvaro Garca vila and Juan
Garca vila, for example, were convicted on weapons charges based on coerced
confession in which they admitted to possessing illegal firearms, which were corroborated by the testimony of three
of the soldiers who had detained them.The judge in their case disregarded their subsequent declarations in
which the two denied the charges to which they had confessed, claiming that the previous statements had been
made under coercion. Their innocence was corroborated by all the civilian
witnesses called to testify, as well
as by a fourth soldier. Nevertheless,
the judge hearing the case, applying
the principle of procedural immediacy,
chose to rely on the recanted confessions.[302]

Similarly, Victor
Garca Uribe was found guilty in 2004 of several of the Ciudad Jurez murders
by a judge who based the verdict almost exclusively on Uribe's confession, even though it was contradicted by other evidence.[303]

To overcome the immediacy principle,
these torture victims must prove that their confessions were coerced.According to the Mexican Supreme Court, this recantation by the accused is not, by itself,
sufficient to eliminate evidentiary value of the confession.Instead the accused must present evidence in
favor of the claim that the confession was coerced.[304]

But, as we noted
earlier, proving coercion and even
torture can be difficult, if not
impossible, given the likely absence
of witnesses and physical evidence.And
even when there is physical evidence of torture,
the defendant may have a difficult time convincing a court to disregard an
allegedly coerced confession.This
difficulty was clear, for example, in the case Martin Del Campo Dodd.[305]After being detained by Mexico City police in 1992, Del Campo confessed to murdering his sister and
brother-in-law, only to recant at
trial, arguing that the confession had
been extracted under torture.A medical
examination at the time of his detention documented the injuries that he
claimed the police had inflicted.And
later, the prosecutor's office
determined that the police had indeed arbitrarily detained and beaten Del
Campo.Yet the trial and appellate
courts ruled that Del Campo had failed to disprove the claim he had made in his
confession that his wounds had been self-inflicted.In other words,
the allegedly coerced confession helped provide the grounds for refuting the
claim that it had been coerced.

What is even more remarkable is the fact that, even when torture isproven, the victim can
still be convicted with evidence obtained through the coerced confession.Mexican courts have held that, so long as the confession has been corroborated by
other information, the fact that a
confession has been obtained through physical violence should not be the basis
for acquitting the suspect.[306]While the coerced confession may itself be
thrown out, the leads it generates
can still serve as evidence at trial.Indeed, some Mexican courts
have even found-in clear violation of international law-that a coerced
confession can itself be admissible at trial if it is corroborated by other
evidence.[307]

In sum,Mexico's
criminal justice system currently encourages torture by allowing law enforcement
agents to use coerced confessions to achieve their ends-whether those ends are
obtaining criminal convictions or covering up illegal activity.As long as it fulfills this function, the practice of torture in Mexico is unlikely to go away.

Mexico's Obligations Under International Law

International human rights law categorically prohibits
torture, as well as cruel, inhuman,
or degrading treatment.This prohibition
is established by Article 7 of the International Covenant on Civil and
Political Rights (ICCPR) and Article 5 of the American Convention on Human
Rights.Mexico has also assumed the
responsibility to prevent and punish torture by ratifying the Convention
against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment in 1986 and the Inter-American
Convention to Prevent and Punish Torture in 1987.In April 2005,Mexico
ratified the Optional Protocol to the Convention against Torture and Other
Cruel, Inhuman or Degrading
Treatment or Punishment.

Why Past Efforts to Curb Torture Have Failed

Mexico
has not ignored its torture problem altogether. Over the past fifteen years, all three branches of government have taken steps
to curb the practice.Yet their actions
have, for the most part, consisted of ad-hoc measures in response to
torture-related scandals, which they
treated as embarrassing aberrations rather than as symptoms of an ongoing
structural problem. And all of them have failed for the same reason: they
stopped short of addressing the root cause of the problem.

Legislative Action

In the early 1990s,
Congress passed anti-torture legislation that was promising in theory, but inadequate in practice.The 1991 Federal Law for the Prevention and
Punishment of Torture made it a federal crime to practice torture and established
that no confession or information obtained through the use of torture could be
cited as evidence at trial.[308]But according to its Article 1, the law only applies in trials in Mexico City and elsewhere, only in federal courts.Furthermore,
these protections have been severely undermined in many cases by the
difficulties that victims face when it comes to proving their torture.And,
as previously mentioned, even when
torture isproven, some federal courts have disregarded the law and
found that a coerced confession can itself be admissible at trial if it is
corroborated by other evidence.[309]

The 1991 law also requires that the person making a
confession have a lawyer present.But, as the U.N. Special Rapporteur on Torture has
reported, this provision has little
impact in practice, given that most
criminal defendants in Mexico rely on public defenders who are "poorly
qualified, extremely badly paid, and overworked,"
and therefore find it "virtually impossible" to ensure "an adequate defense."[310]Moreover,
the law allows criminal suspects to make confessions in the presence of "a
person of confidence" instead of a lawyer.In many cases, criminal
suspects had never met, let alone
consulted with, this "person of
confidence" until the moment they signed their confessions.Furthermore,
the "person of confidence" was often an employee of the prosecutor's office.

Two years later,Mexico
passed a constitutional amendment that struck closer to the heart of the
problem.It established that only
confessions made before a judge or prosecutor could be cited as evidence.The aim was to prevent the police from
beating confessions out of people when they were alone behind closed
doors.Yet the presence of a prosecutor
is not enough to prevent coerced confessions.After all, the judicial
police work for the prosecutors and they share the same incentives to force
suspects to confess.A suspect could
always be beaten up behind closed doors before being presented to the
prosecutor and if the prosecutor found the suspect to be "uncooperative," he could return the suspect to the police for
another beating.

Judicial Rulings

In recent years,
the Supreme Court and lower courts have issued rulings providing guarantees
that should, in theory, curb the use of torture. But their impact has also
been limited in practice.

As previously mentioned,
since 1995, the Supreme Court has
held that the confession is admissible at trial only if it is corroborated by
other evidence.[311]Lower courts have explicitly held that the
first declarations of the accused do not always have more value than subsequent
ones, since "immediacy" is not the
only element that should be taken into account when evaluating the truth of a
confession.[312]

Yet, as we have
seen, this jurisprudence has not
been respected in practice.One problem
is that there is no clear interpretation of what counts as "corroborating
evidence."Consequently, it is possible for prosecutors to corroborate the
coerced confession using weak evidence that is independently obtained, or strong evidence that derives from the
confession itself.In fact, prosecutors in Mexico City offer witness statements as the
only evidence in 90 percent of the cases.In most of those cases, the
witnesses are either the arresting officers or the officers who sent the
suspect to the prosecutor's office.[313]

In January 2005,
the Supreme Court held that the right to adequate counsel becomes effective
from the moment in which the accused is presented to the prosecutor.Accordingly,
the first declaration given before the prosecutor will be inadmissible if the
accused did not have the chance to consult privately with a lawyer prior to the
declaration.[314]

This decision is most welcome since a recent evaluation by
the Center for Investigations and Education in Economics (Centro de Investigacin y Docencia Econmicas,
CIDE) found that only 30 percent of those that made declarations before a
prosecutor, and only 73 percent of
those that made declarations before a judge,
had access to a lawyer when they gave their statements.[315]
However, this decision does not
constitute binding jurisprudence in Mexico,
and therefore it is unlikely to result in any immediate change in the way the
justice system works.

Even if,
eventually, the Supreme Court does
create binding jurisprudence on this issue,
ensuring adequate counsel at the point when the suspect is before the
prosecutor will not solve the problem.After all, 60 percent of
those accused of crimes are detained by the police and remain under their
custody for some time before being presented to a prosecutor.[316]

Government Programs

In 2000, the Fox
administration committed itself to "25 steps to combat torture," consisting mainly of measures to increase the
training and supervision of police and detectives,
as well as to improve investigations into torture allegations.

As part of this program,
the PGR issued internal guidelines for compliance with the Istanbul Protocol, which sets standards for documenting torture and
its consequences.[317]The internal guidelines include criteria to
be used by specialists performing medical and psychological evaluations of
people who allege they were victims of torture.

These guidelines apply automatically to the federal
government, and the Attorney General's
Office has signed agreements with some state-level counterparts for its
implementation in the states.Although
this is a good example of internalizing an international norm, most torture cases occur at the state level-as the
Mexican government itself recognizes-and the greatest challenge for the federal
government today is making the guidelines mandatory for all state prosecutor
offices and ensuring that they all receive courses on how to use them.[318]Until that happens,
these measures will have limited impact at the state level.

Moreover, the
adoption of the guidelines cannot,
by itself, guarantee that cases of
torture will be adequately investigated and addressed. It is also necessary to
ensure the guidelines are implemented effectively. Their implementation in Mexico
has been undermined by several factors,
according to Mexico NGOs, among them
the fact that authorities conducting the evaluations have not always been
independent experts, and crucial
evidence has sometimes been neglected.[319]More fundamentally,
the guidelines themselves provide no guarantee that perpetrators of torture
will be prosecuted, the single most
effective way of curbing abuse.

In September 2003,
President Fox signed the Optional Protocol to the Convention against Torture
and Other Cruel, Inhuman or Degrading
Treatment or Punishment.The Protocol, which was ratified in April 2005, establishes a system of regular visits to be
undertaken by independent international and national bodies to places where
people are deprived of their liberty to document abusive practices and offers
recommendations for improving the guarantees against torture and
mistreatment.

Fox's Reform Package

The Key to Progress

While these initiatives may have prevented some abuses, what Mexico has needed to overcome its
torture problem is a reform that would make it far more difficult to use
coerced confessions at trial-not in theory,
but in practice. In March 2004,
President Fox sent to Congress a justice reform proposal that included measures
designed to do precisely that.

One measure is an amendment of Article 20 of the
Constitution, which requires that a
criminal defendant have access to defense counsel from the moment he or she is
brought before the prosecutor, and
that it be an "adequate" and "certified" lawyer.This requirement aims to end the practice of
incompetent or even non-certified "defenders,"
also known as "persons of confidence,"
from signing off on confessions without ever providing serious legal counsel to
the defendant.The Senate approved this
constitutional reform in 2005, which
is an important step.But, it still has to be approved by the House of
Representatives and local congresses before it can become enforceable.[320]

While this reform should be helpful,
alone it is not enough to solve the problem.Judicial police would still routinely have custody of suspects before presenting
them to a prosecutor and could torture them before they receive adequate
counsel.

The critical change proposed by the Fox administration is to
deny evidentiary value to all confessions that are not made directly before a
judge. The proposed modification of Article 20 of the Constitution would render
inadmissible any confession "given before any authority other than a judge or
before a judge but without the presence of a defense lawyer." The reform
package also proposes to modify Article 459 of the federal criminal procedure
code to incorporate these provisions at the federal level.

Under this proposal,
prosecutors will no longer be able to use confessions they obtained on their
own (or through the judicial police) and,
consequently, will be much less
likely to conspire with the police to coerce self-incriminating testimony.This provision,
together with another that requires judges to be present at all judicial
hearings, would put to rest Mexico's
peculiar version of the "immediacy principle."Torture victims would no longer have to prove that their original
pretrial confession was coerced.It
simply would not be admissible at trial.

Both prosecutors and investigative police agree that this is
a necessary solution.The attorney
general of the state of Chihuahua, for example,
told Human Rights Watch that denying evidentiary value to confessions obtained
by prosecutors prior to trial is "absolutely crucial for ending torture."[321]

Another important reform that remains pending would deny
legal effect to all illegal practices by law enforcement agents, thereby quashing any evidence obtained illegally.[322] This
provision is crucial to prevent courts from considering other evidence that is
obtained as a consequence of coerced confessions,
since today there are no clear rules regarding the use of this type of evidence
at trial.

Impact at the State Level

Since the federal code of criminal procedure does not apply
to states, any reforms to it will
have no impact at the state level.However, the proposed constitutional reform to Article 20, requiring that confessions be made only before
judges, does apply to states.

The constitutional reform proposal will, in the first place,
strengthen a series of reforms that have been taking place at the state
level.This is crucial since 95 percent
of crimes are judged by state level judicial systems.[323]Justice reform proposals are currently under
discussion in Oaxaca,
Jalisco, Zacatecas, and Chihuahua, and they all address the problem of ascribing
evidentiary value to confessions obtained by prosecutors.

The Oaxaca, Jalisco and Zacatecas reform proposals require
that any declaration by the accused be given in presence of a defense attorney
and before a judge.[324]The Chihuahua
reform package, on the other hand, still says that declarations rendered before a
prosecutor could have evidentiary value,
but the proposal provides for other mechanisms to ensure that the person
accused of a crime is not tortured to obtain a confession.[325]
A Nuevo Len reform proposal that was adopted in part in December 2004
establishes a new oral and adversarial system for some crimes, but it still allows confessions to be rendered
before a prosecutor. Statements made by the accused to prosecutors are valid as
long as they were made in the presence of defense counsel and are later read
(or reproduced with documentation) in front of a judge.

While they would represent a step forward, not all proposed state-level reforms go far enough, making it all the more pressing that Mexico adopt
the Fox administration's proposed reform to Article 20 of the Mexican Constitution, requiring all states to propose and adopt reforms
capable of genuinely eradicating the use of forced confessions.Some reforms assume that the contradiction
of evidence presented by the prosecutor and the defense counsel before the
judge-by itself-will be enough to disqualify a coerced confession.Yet without other safeguards, this has not been the case.

Adoption of the proposed constitutional reform is also
important to prevent constitutional challenges to the new state norms.If local prosecutors feel that state-level
reforms are limiting their ability to solve cases,
they could request the federal attorney general to challenge the
constitutionality of the new norms.Absent a constitutional requirement that state laws substantively mirror
federal laws aimed at curbing coerced confessions,
local prosecutors could argue that new state procedural laws contradict Article
21 of the Constitution, which gives
prosecutors the authority to conduct criminal investigations.

If state prosecutors comply with new state laws and do not
challenge them, reforms at the state
level could improve the justice administration in Mexico enormously.But,
in light of a potential constitutional challenge,
it is crucial to complement state reforms with the adoption of Fox's proposed
amendment to Article 20.

A Dangerous Flaw

While part of the reform proposal would represent a major
step forward, the progress it offers
could be severely undercut by a huge exception it has carved out for cases
involving "organized crime."Fox's
proposal adds language to the Constitution that allows a distinct legal regime
to apply to these cases, so that
they are not bound by the basic due process guarantees established by the
Constitution.It is an astounding
measure, especially considering that
Mexican law defines "organized crime" broadly to include not only drug cartels, but also any group of three or more people who
conspire to commit multiple crimes.[326]
It may well be true that law enforcement agents may need special tools to bring
powerful mafias to justice, but this
does not justify creating a wholly separate set of rules under the
Constitution.

Other Useful Measures

In addition to changing the text of the Constitution and the
law, other measures must be adopted.
It is essential that any constitutional
reform be accompanied by proper training that will teach current standards to
prosecutors and judicial police, as
well as how to conduct better investigations,
and the consequences of not doing so.For judges to become more effective guarantors of basic rights, they must have access to training and sufficient
resources to assume their new role,
enforce reforms, and adequately
manage their case load.

Above all, it
will be essential to adopt at least some measures that will ensure more direct
involvement of the judges in the criminal process.A recent study shows that 90 percent of those
imprisoned in two states and Mexico
City report that they never spoke with the judge that
was deciding the case against them.[327]The judge's presence during declarations must
be, then,
the first step towards their greater involvement in the judicial process in
general.

Misguided Opposition to an Urgent Reform

The main obstacle to passing these much-needed reforms has
been politicians' concerns that they run counter to the public demand for
greater public security. Opponents of the measures argue that denying
prosecutors the authority to use confessions will prevent them from doing their
job.

But this argument is largely misleading.Under the proposed reform, prosecutors will still be able to interrogate
suspects to build leads that can help them solve cases.What they will not be able to do is use these
declarations as evidence at trial.This
limitation is undoubtedly a significant one.But it must be understood as a serious antidote to a very serious and
widespread problem.

Moreover, the
antidote is needed not merely to curb abuses,
but also to improve the quality of investigations carried out by
prosecutors.As the Under Secretary of
Criminal Public Policy of Public Security in the Fox administration put it"so long as confessions have evidentiary
value, investigative police officers
will be tempted to obtain confessions instead of search for hard evidence."[328]For some,
this temptation is all the more powerful when it is possible to force
confessions out of people. "Why take the time and effort to establish the actual
truth," these prosecutors figure, "if I can close the case by coercing a suspect
into 'confessing'?"

But when coercion becomes a convenient shortcut, the cost for criminal suspects is profound, as torture often causes enduring psychological as
well as physical damage.And as the case
of Ciudad Jurez has demonstrated,
the torture victims are not the only ones affected by this abuse.If criminal suspects are wrongly convicted on
the basis of coerced testimony, the
victims of their alleged crimes (and the victims' relatives) will be denied
their right to justice as well.

Defenders of the proposed exception for "organized crime"
argue, in similar terms, that it is necessary because of the difficulties
and dangers associated with investigating drug cartels and kidnapping
rings.It is certainly reasonable for
the reforms to include well-designed and targeted exceptions for certain cases
that are particularly difficult to investigate.Other countries, such as Italy,Colombia and the United States, have adopted such exceptions.However,
none of these countries have resorted to measures as extreme as the blanket
exception under the Mexican reform proposal,
which would deny basic constitutional guarantees to anyone suspected of
participating in organized crime,
broadly and nebulously defined.Mexico's
proposed blanket exception would remove incentives for thorough investigation, increasing the likelihood that the innocent would
be convicted and that some of the most hardened criminals would be left free, ultimately making prosecutors less effective at
combating organized crime.

Excessive Use of Preventive Detention

More than 40 percent of prisoners in Mexico-over eighty thousand
individuals-have not been convicted of the crime for which they have been
imprisoned.Instead they serve prison
time for months on end, both before
and during trial.The reason for this is
that the justice system currently does not grant judges the power to decide, in cases where "serious crimes" are alleged, whether a suspect should remain in jail or be
provisionally released pending trial.The problem is aggravated by the penchant of elected officials to
increase the number of "serious crimes" (delitos
graves) in response to public demands for improved public security.

This excessive use of preventive detention violates the
fundamental rights of thousands of Mexicans.And, combined with the penal
system's failure to keep separate facilities for convicted prisoners and those
who have not been convicted, it
contributes to the overcrowding of prisons,
with dire consequences for public security in Mexico.

How the Legal System Limits Judges' Discretion

The Mexican legal system does not grant judges the power to
decide whether a person accused of a "serious crime" will face trial in
preventive detention or in provisional liberty.Article 20 of the Mexican Constitution holds that a judge may grant
provisional liberty unless the law expressly prohibits it in light of the
gravity of the offense.But instead of
establishing criteria for determining whether the circumstances in a specific
case justify sending the accused to preventive detention,
Mexican laws-both at the federal level and in most states-establish an
extensive list of "serious crimes" for which preventive detention is mandatory.[329]In other words,
if a person is charged with any of those "serious crimes,"
judges do not have discretion to evaluate that case.They must send the accused to preventive
detention and deny any request for provisional liberty.

In response to popular demands for stronger anti-crime
measures, the list of "serious
crimes" has increased-both at the state and federal levels-during the last
years.The list of "serious crimes"
includes crimes that are not necessarily dangerous.In Jalisco,
for example, if a robbery is
committed with two aggravating factors it becomes a serious crime.For instance,
if two people shoplift at night it becomes a serious crime because it is a
robbery with two aggravating factors (it involves two people and occurs at
night).In Zacatecas, certain electoral crimes are considered serious
crimes.So,
if a public official uses public funds to support a political party or
candidate, independently of the
sanction that this person could face for misuse of public funds, he or she will also be sent to preventive
detention for being accused of a (serious) electoral crime.In Yucatn,
the illicit sale of alcoholic beverages is a serious crime.Therefore,
if a person illicitly sells or distributes alcoholic beverages, he or she will face trial in preventive detention.

At the state level,
almost all criminal procedure codes have a list of "serious crimes."In
those places where there is no list of "serious crimes,"
such as Veracruz and Mexico City,
a crime is considered "serious" if the mathematical average between the maximum
and minimum sentences for that crime is more than a certain number of
years.In Mexico City,
for example, a crime is "serious" if
the average is more than five years.The
problem in these cases is also that judges do not have discretion to grant
provisional liberty in cases of "serious crimes."If someone is accused of a crime that is
considered "serious" due to the arithmetic formula,
judges must send the accused to preventive detention. In these states, as a consequence of civil society's calls for
justice, politicians have increased
the sentences of most crimes. Thus,
the end result is the same as it is at the federal level or as it is in those
states where there is a list of "serious crimes": Many non-dangerous crimes
become "serious" and preventive detention becomes mandatory.

Currently, the
Mexican Constitution does not include in its text the presumption of innocence.
Some Supreme Court constitutional interpretations have stated that the
presumption of innocence is implicitly contained in the Constitution.[330]However,
these interpretations do not yet constitute binding jurisprudence.

Impact on Prison Conditions

The current legal framework leads to an excessive use of
preventive detention-a problem that has only been exacerbated as federal and
state legislators have expanded the number of crimes deemed "serious."The number of Mexican prisoners who have not
been convicted of the crime for which they are being held has doubled over the
past decade.[331]Currently there are over eighty thousand
prisoners in preventive detention,
almost 43 percent of the total prison population.[332]

The large number of suspects in preventive custody is a
major factor contributing to overcrowding in Mexico's prisons.The fact that Mexico routinely fails to separate
convicted and not convicted prisoners only exacerbates the problem.[333]The average occupancy rate of Mexican prisons
currently stands at 135 percent of actual capacity.[334]In extreme cases,
such as one prison in the state of Sonora, occupancy rates are in excess of 500 percent of
capacity.[335]

The problem of prison overcrowding has only worsened during
the Fox presidency.Between December
2000 and November 2005, the prison
population increased by 54,488
prisoners (a 35.2 percent increase).[336]

Overcrowding leads to increasingly bad conditions for those
detained in Mexican prisons.Fifty-three
percent of prisoners in three local jurisdictions (Mexico City,Mexico state and Morelos) reported
that they do not receive enough food,
and 29 percent do not have enough water to drink.Most prisoners rely on their families for
medicine, clothes, shoes,
and basic resources necessary for their hygiene (for example, soap,
toilet paper, and toothpaste).Prisoners rarely receive an education or have
the chance to work while in prison.[337]Overcrowding,
with similar consequences, has also
been documented in the majority of state prisons.[338]

An example of the misuse and tragic consequences of the
current system of preventive detention involves the case of Felipe Garca Meja, who was arrested in January 2004 in Mexico City.He was charged with allegedly stealing a
woman's bag on the street, while in
the company of his brother and a friend.The prosecutors considered it a "serious crime" and he was therefore
sent to preventive detention.Garca
Meja's case also tragically exemplifies how sending people to preventive
detention may lead to other violations of rights.Although he was only fifteen years old, he was sent to jail with adult prisoners. While in preventive detention, he was harshly beaten by another inmate.[339]Due to his injuries,
he died a few days after his arrest.[340]

Mexico's Obligations Under International Law

Under these circumstances,
detention of unconvicted prisoners violates international human rights law
concerning the presumption of innocence,
one of the most established and widely accepted principles of the right to a
fair trial, and the treatment of
prisoners.

Article 8(2) of the American Convention on Human Rights
expressly establishes that every person accused of a criminal offense has the
right to be presumed innocent. Article 24 of the ICCPR also provides that
"everyone charged with a criminal offence shall have the right to be presumed
innocent until proved guilty according to law."And Article 9(3) of the ICCPR,
for its part, establishes that
persons charged with a crime should not,
as a general rule, be kept in
detention.[341]According to the United Nations Human Rights
Committee, preventive detention may
only be used if it is lawful,
reasonable, and necessary.It is only appropriate if it is necessary "to
prevent flight, interference with
evidence or the recurrence of crime" or "where the person concerned constitutes
a clear and serious threat to society which cannot be contained in any other
manner."[342]

Furthermore, the
previously-described living conditions violate international human rights
standards that provide that persons deprived of liberty must be treated with
dignity.[343]The failure to separate convicted prisoners
from those who are in preventive detention undermines the presumption of
innocence and violates international standards that provide that convicted and
unconvicted persons should be held separately and receive separate treatment.[344] Finally,Mexico's
criminal system fails to pursue the social reintegration of those convicted for
having committed a crime, which, according to international law, should be the goal of any criminal system.[345]

Fox's Reform Package

The justice reform package that President Fox presented in
March 2004 offers an important step toward curbing the excessive use of
preventive detention in Mexico
through amendments to the federal Constitution and the federal code of criminal
procedure.

One of the proposed amendments to the Constitution would
establish a constitutional guarantee of the presumption of innocence.Another would add language indicating that
judges may grant provisional liberty to individuals accused of "serious"
crimes.[346]An amendment to the Federal Code of Criminal
Procedure would include more specific language allowing judges to determine
whether or not to grant provisional liberty in cases involving certain (but not
all) "serious crimes," provided that
the accused does not have a prior conviction for a serious crime, has complied with procedural obligations in prior
trials, and is not subject to an
extradition process related to the accusation.[347]

Unfortunately, the
Fox proposal suffers from serious shortcomings.One is that it maintains automatic preventive detention for many of the
"serious crimes" in the federal criminal code.Another is that it fails to eliminate existing provisions that deny
provisional liberty to individuals accused of "non-serious" crimes who are
unable to guarantee their ability to pay damages should they be convicted.[348]

Yet both these shortcomings could potentially be
counteracted by establishing a constitutional guarantee of the presumption of
innocence.This guarantee could provide
the basis for compelling future legislative and judicial actions to grant
judges greater discretion in determining when and whether to grant provisional
liberty.

The constitutional guarantee of the presumption of innocence
could also have an important impact at the state level-especially in states
where efforts are already underway to reform local criminal law to address the
problem of excessive use of preventive detention.

Proposed state reforms to the codes of criminal procedure in
Chihuahua,Jalisco,Oaxaca, and Zacatecas have specifically addressed the
problem of excessive use of preventive detention.The proposed reforms in Chihuahua, Jalisco,
and Oaxaca
would go even further than the federal proposal by completely eliminating the
list of "serious crimes" from the local codes of criminal procedure.The reforms would grant the judge discretion
to adopt the most appropriate precautionary measures in all cases.Moreover,
they would limit preventive detention to a maximum of twelve months.[349]A reform proposal in Zacatecas, by contrast,
keeps the current system of relying on a list of "serious crimes," but it does grant judges discretion to decide on
preventive detention with respect to crimes that are not listed as "serious
crimes."[350]

These states' reforms are the exception, however,
which is all the more reason why an amendment to the federal Constitution to
guarantee the presumption of innocence is so crucial: it could compel other
states to pursue similar reform efforts.

Misguided Opposition to an Urgent Reform

As with the proposed anti-torture reforms, opponents argue that efforts to curb the misuse of
preventive detention would weaken law enforcement.A typical view was expressed by one senator, who told Human Rights Watch that a constitutional
guarantee of the presumption of innocence was unnecessary and that the reform
of preventive detention would only "mean setting criminals free."[351]

The comment,
which presumes the guilt of jailed suspects,
is itself an eloquent-if inadvertent-testament to the need to reinforce the principle
of the presumption of innocence in Mexico.It also shows a troubling lack of awareness
of the negative consequences of the excessive use of preventive detention, which itself constitutes a serious threat to
public security.

Ineffective Use of Resources

The incarceration of tens of thousands of nonviolent
prisoners diverts public funds that would more wisely be applied to other
strategies to promote public security. The average cost of having one person in
prison in Mexico
is 130 pesos per day (U.S.$ 12.5).[352]If there are eighty-two thousand prisoners in
preventive detention in Mexico, and the numbers are increasing, the cost per day of keeping these people in prison
is over U.S.$1 million.And, this is only the direct cost of incarceration, which does not take into account other costs, such as that which results from the prisoner's
inability to work, earn an income, and pay taxes,
as well as the social and psychological costs incurred by the prisoners'
dependants.

Corruption and Violence within Prisons

The excessive use of preventive detention also contributes
to the severe overcrowding of Mexican prisons,
which in turn undermines the ability of penal authorities to control inmate
populations. This lack of control fosters the development of corruption
networks within prisons, which are
sometimes operated by prison guards and sometimes by powerful mafias within the
prisons.As a result, for example,
inmates in some prisons have to pay an "internal tax" once or twice a day.Prisoners must pay to receive visits, to be able to get food from their family members, to be transferred to bigger or less violent cells, or to avoid performing their cleaning duties.[353]

The system then becomes so chaotic that, according to a prison director in Aguacalientes, those working within it must increase the number
of convicted prisoners that get an early release.Since there is a limit to the number of
people a prison can house, and there
are practically no limitations on who goes into the prisons, the system generates a perverse incentive:if overpopulation is complicating governance
within the prison, the penal
authorities in charge of determining who gets early release has an incentive to
increase the number of prisoners to which they grant that type of release.When granting release,
they consider whether the convicted person has served 60 percent of the
sentence, whether he or she has been
sentenced more than once for that same crime,
and whether he or she behaved well in prison.The criteria used to grant early release do not include whether that
person will be a danger to society after he or she is released.As a consequence,
three out of ten "high risk" convicted prisoners get early release.[354]

Furthermore,
since convicted and unconvicted individuals participate together in some
activities within prisons (such as sports,
education, and family visits), people who have been charged with less serious
crimes often interact with inmates convicted of violent crimes.In many cases,
the most hardenedcriminals recruit
prisoners that are in jail for minor crimes to perform major crimes when they
leave prison. A well-known example of this was the 2005 kidnapping of soccer
coach Rubn Omar Romano.His kidnapping
was orchestrated by a dangerous criminal held in the Santa Martha Acatitla
prison, and carried out by other
individuals who had been in the prison with him prior to their release.[355]Those carrying out the kidnap had been
imprisoned for minor crimes.[356]

More Prisoners Does Not Equal More Security

Critics of the proposed reform argue that preventive
detention is necessary to ensure that "criminals" are sent to jail.But this argument is based on the erroneous
assumption that increased imprisonment of suspects results in increased
security.This is not the case in Mexico.

Too often, arrest
quotas and other arbitrary factors-not an assessment of the risk a particular
individual poses-drive decisions to imprison suspects. For example, in 2003,
the Secretary of Public Security of Mexico City (Secretara de Seguridad Pblica del DF) said it intended to
increase the number of arrests in order to be able to present twenty-five
thousand people-evidently an arbitrary number-before a prosecutor every year.Between 2002 and 2005,
the number of prisoners in Mexico City
doubled.[357]Prosecutors told the Mexican NGO CIDE that
they were required to send cases to trial,
and that "the more cases you send,
the better; it does not matter if they are properly substantiated or not."[358]

Judicial police officers sometimes face even more troubling
incentives: some receive an economic bonus if they detain people and send them
before a prosecutor.For example, in the municipality
of Tlanepantla in the State of Mexico, police officers received 1,500
pesos (almost U.S.$150) for every person they arrested. The system,
which was publicized, lasted only a
few days due to complaints by civil society groups.[359]Nevertheless,
this practice has apparently not disappeared.In a 2005 documentary, a
judicial police officer confirmed that officers do receive a bonus if they
arrest someone and present this person before a prosecutor.[360]

The increasing number of prisoners is,
therefore, not a good measurement of
the system's effectiveness at combating insecurity.Given the failure of prosecutors to conduct
reliable investigations, there is
little certainty as to whether the jailed suspects are,
in fact, responsible for the crimes
for which they are charged.

Another argument against limiting the use of preventive
detention is that it will be harder for prosecutors to solve crimes, and for judges to convict,
because every person charged with a crime will "remain free."This argument is also fundamentally
flawed.To allow judges to presume that
every individual is innocent and grant them the ability to determine in each
case whether that person should be held in preventive detention simply gives
them the possibility to decide if the defendant will face trial in jail or in
provisional liberty. It does not force judges to leave everyone free during
trial.And even in cases where they do
grant provisional liberty, judges
will be able to use other measures to ensure that the person will be present
during trial and eventually sent to jail if he or she is found guilty and the
crime merits imprisonment.

Recommendations

If Mexico
is to make any meaningful progress in curbing the abuses that continue to be
committed in the name of fighting crime,
it will need to recognize that these abuses themselves represent a threat to
public security.The justice reform
measures discussed in this chapter represent a crucial step in the direction of
integrating human rights and public security into a single coherent agenda.

1) Curb the use of coerced confessions as evidence in trial

The next administration should promote a constitutional amendment
that would allow confessions to be admissible as evidence at trial only if they
are made before a judge and with the presence of a defense attorney.This reform would eliminate the main
incentive that judicial police and prosecutors currently have to engage in
torture-the fact that confessions rendered before prosecutors can be used as
evidence in trial.

2) Curb the excessive use of preventive detention

The next administration should promote an amendment to the
Constitution, giving judges full discretion
to grant provisional liberty or preventive detention in all cases of "serious"
and "non-serious" crimes.Preventive
detention should be a measure of last resort,
adopted only in cases where the judge believes the suspect will otherwise not
be present during trial, where
granting provisional liberty would interfere with the normal development of the
judicial process, where there is
substantial evidence that the accused would pose a serious threat to society
which cannot be contained in any other manner.In all cases, the judge
should also have the power to adopt other precautionary measures that do not
interfere with the liberty of the accused.

To ensure that the judges' discretion is exercised properly, the decision to grant provisional liberty or to
impose preventive detention must be reasoned and adopted after open and oral
hearings in which the prosecutor and the defense attorney had the possibility
to explain their points of view.

The next administration should also promote an amendment to
the Constitution to establish a guarantee of the presumption of innocence.Such an amendment could play a vital role in
compelling further reforms at the federal and state level to allow judges more
discretion over the use of preventive detention.

VI. A Paradigmatic Case: Ciudad Jurez

The human rights story that has drawn the most local and
international press coverage during the Fox administration has been the case of
Ciudad Jurez, where, for over a decade,
local law enforcement authorities failed to resolve hundreds of murders and
"disappearances" of women.The extensive
coverage of the killings has been crucial both for drawing attention to the
plight of the victims and their families and for raising much-needed awareness
of the broader problem of violence against women in Mexico.

Yet the tragedy of Ciudad Jurez also offers other important
lessons that have received less attention-lessons that reflect the main themes
of this report.Chief among these is how
abusive police practices undermine both human rights and public security, as well as how systemic reforms are needed to
improve Mexico's
ability to promote both rights and security.But in addition to showing what's wrong with the system and what changes
are needed to fix it, Ciudad Jurez
also offers an important example of how Mexico can actually make real
progress in bringing these changes about.

Scapegoats:How Abuses Undermine Public Security

Over the past thirteen years,
more than four hundred women have been murdered or "disappeared" in Ciudad Jurez,Chihuahua.In a majority of the cases, authorities have not been able to determine who
was responsible for the crimes against the women.[361]At least thirty-four of the victims remain
unaccounted for today.[362]

For years, local
law enforcement authorities did little to address the problem.Only when families of the victims began to
mobilize, and the killings and
"disappearances" began to draw extensive media attention,
did state authorities begin to act.[363]But instead of conducting serious
investigations, the state
prosecutor's office resorted to the abusive tactics that regularly substitute
for good police work in Chihuahua:
they sought to convict scapegoats on the basis of coerced confessions.

Chapter 5 of this report detailed two cases in which local
authorities used torture to obtain confessions and thereby "solve" the crimes
against women.One of them involved two
bus drivers, Vctor Garca Uribe and
Gustavo Gonzlez Meza, who were
tortured in 2001 until they confessed to having killed eight women.Gonzalez Meza died in prison under mysterious
circumstances, and Garca Uribe was
declared not guilty by a judge in 2005.The second case involved David Meza,
who was tortured in 2003 and coerced into confessing he had killed his cousin.His case remains pending, but there is no evidence against him, other than the coerced confession.

These were not isolated incidents.Chapter 5 detailed two other cases of torture
by law enforcement agents in Chihuahua, and cited Chihuahua's
current attorney general, Patricia
Gonzlez, who told Human Rights
Watch that during her twenty-four years as a criminal judge, she had encountered cases of torture "all the
time."[364]Moreover,
a 2004 report by the CNDH found eighty-nine instances in which the suspects in
these crimes had "spontaneously confessed" before the public prosecutor, only to recant the confession before a judge, claiming that they had been subjected to
torture.In the same report, the CNDH observed that the use of physical or
psychological violence to obtain confessions appeared to be a regular practice
within the state prosecutor's office.[365]

The reliance on coerced confessions did not solve the crimes
nor address the family members' claims for justice.Instead,
they most likely contributed to the problem,
given that, as the confessed killers
were presumably innocent, those
guilty of the crimes remained at large.Indeed, in 2004, the year after David Meza was jailed, the yearly homicide rate for women in Ciudad
Jurez actually increased.[366]

Using Foreign Policy to Promote Local Change

After the Fox administration opened Mexico to international scrutiny, numerous international observers visited Ciudad
Jurez to examine the situation there first-hand,
meeting with victims' relatives and local rights advocates to hear their
concerns and complaints.These observers
included the Special Rapporteur of the U.N. Commission on Human Rights on the
Independence of Judges and Lawyers (2001),
the United Nations Committee Against Torture (2001),
the Special Rapporteur on the Rights of Women of the Inter-American Commission
on Human Rights (2002), two experts
from the Committee Against the Elimination of Discrimination Against Women
(2003), and the United Nations
Office on Drugs and Crime (2003).Several international NGOs,
including the Washington Office on Latin America, Amnesty International,
and the Latin American Working Group,
also conducted onsight research and extensive advocacy work that served to
reinforce local advocacy efforts aimed at ending the impunity for these crimes.

This international presence played a crucial role in
generating pressure on Mexican authorities to act.According to Mariclaire Acosta, former Under Secretary for Human Rights and
Democracy in the Ministry of Foreign Affairs,
after the intense scrutiny by the international community,
it became "impossible for the president and the members of his cabinet charged
with law enforcement and public security to continue to look the other way."[367]For the Foreign Affairs Ministry, it was a casebook example of using international
scrutiny to encourage government action on human rights within Mexico.

Local rights advocates also told Human Rights Watch that the
international attention had been decisive in forcing government action.According to Luz Castro,
who works with the Center for the Human Rights of Women (Centro de Derechos Humanos de las Mujeres) and with a group of
victims' families called Justice for our Daughters (Justicia para Nuestras Hijas),
"After all the visits and reports by international organizations, the state had to recognize the problem."[368]Similarly,
Marisela Ortiz, who works with the
NGO May Our Daughters Return Home (Nuestras
Hijas de Regreso a Casa),
another group of victims' relatives told Human Rights Watch: "The opening was
absolutely necessary.Our cries for help
wouldn't have gotten a response if it weren't for the international
monitors.The opening was what made it
necessary for the federal and state government to do something.[369]

The Fox administration responded to the growing concern in
2003 by creating the National Commission to Prevent and Eradicate Violence
Against Women in Ciudad Jurez (Comisin
para Prevenir y Erradicar la Violencia contra las Mujeres en Ciudad Jurez).[370]The Commission then engaged in a variety of
activities, including helping to
bring the Argentine Forensic Anthropology Team (Equipo Argentino de Antroploga Forense,
EAAF) to Chihuahua
to identify the bodies of dead women.In
2004, after a request by the
Commission and Mexican NGOs, the
EAAF prepared a report that evaluated the flaws in past investigations that had
tried to identify bodies of dead women,
and concluded that prior identification of bodies was unreliable.[371]Since then,
the EAAF has worked under the auspices of the state prosecutor's office in
Ciudad Jurez to obtain samples from bodies and family members in order to
match their DNA results.By January 2006, the EAAF had obtained DNA samples from sixty
bodies and 125 family members, and
had suceeded in identifing thirteen bodies.

In addition to
establishing the Commission, the Fox
administration appointed a federal Special Prosecutor for the Homicides of
Women in Ciudad Jurez (Fiscal Especial
para la Atencin de Delitos Relacionados con los Homicidios de Mujeres en el
Municipio de Jurez, Chihuahua)
in 2004.The role of this
prosecutor has been limited by the fact that most of the cases at issue fall
under the jurisdiction of local courts and prosecutors.Only twenty-four of the 377 homicides can be
tried in federal courts, and those
cases are currently being investigated by a division of the federal Attorney
General's Office (Procuradura General de
la Repblica, PGR) charged with
investigating organized crime (Subprocuradura
de Investigacin Especializada en Delincuencia Organizada, SIEDO).[372]Nonetheless,
according to state officials, the
Special Prosecutor's Office has been helpful in identifying irregularities in
past investigations by state authorities.[373]For example,
in its final report, the special prosecutor
found that 177 public officials (i.e.,
over 35 percent of those that participated in investigations) had participated
in acts that might warrant administrative or criminal sanctions.According to the PGR,
none of these public officials continue to work for the state attorney's
office.[374]

The Special Prosecutor's Office has also actively
participated in a joint effort of the federal and state governments to provide
economic reparations to the families of the victims in these cases.The federal government has contributed 25
million pesos and the state government 5 million (totaling almost U.S.$3
million) to a fund that has provided economic compensation to the families of
sixty-three of the victims.[375](Some family members and local rights advocates
have expressed grave reservations about the reparations program, fearing that it will serve as a substitute for
prosecutions.[376])

In addition to spurring action by the federal government, the international attention has helped to spur
action at the level where, given the
nature of the problems, it was most
needed: the state government.After
taking office in October 2004,Chihuahua's new attorney
general, Patricia Gonzlez, made the cases a top priority of the prosecutor's
office and set about changing how the state approached these and other cases, increasing the emphasis on investigative
techniques and strengthening the work of internal offices that sanction
officers that commit abuses.[377]

By the end of 2004,
the new approach appeared to be generating positive results.The state prosecutors had obtained the arrest
of fifty-two people accused of having committed these types of crimes against
women, including eleven for crimes
committed between 1993 and 2002.State
prosecutors completed investigations in 80 percent of the cases from 2005
involving homicides of women, and all these cases are pending before a judge
that must decide whether they go to trial.[378]Significantly,
there were four complaints of torture by law enforcement agents during this
time, and they led to three arrests
of state agents.This stands in contrast
to the previous six years, during
which there had been eighteen torture complaints,
but not a single arrest warrant issued.[379]

Yet, as we showed
in Chapter 5, the problem of torture
being employed as a substitute for effective investigations is difficult to
eradicate so long as prosecutors are able to use coerced confessions to convict
suspects.The state attorney general
told Human Rights Watch that she had reached the same conclusion and, consequently,
believed that the most effective way to curb the practice of torture was to
reform the state's justice system.[380]Similarly,
the president of the Chihuahua State Human Rights Commission told Human Rights
Watch that a reform of the justice system was needed to remove the incentives
that promote the use of torture and abuses to obtain confessions.[381]

The views of these two officials were by no means
isolated.In fact,
a consensus had emerged in the state that the justice system was in need of an
overhaul.In May 2005, the state judicial,
legislative, and executive branches
signed an agreement to reform the system.[382]And in January 2006,
the top officials of all three branches presented a reform proposal that would, among other things,
tackle the problem of torture and coerced confessions.Specifically,
the proposal would establish that a confession made before a prosecutor (in the
absence of a judge) could only have evidentiary value if it met certain
specific conditions: the statement is videotaped and made in the presence of a
defense attorney, and the accused
has not been subject to illegal detention.

This proposed anti-torture measure does not go as far as the
one proposed at the federal level by the Fox administration-and specifically Fox's
proposed amendment to the Constitution establishing that only confessions made
before a judge would have evidentiary value at trial.Yet there is a good reason why not: if the
state reform did include such a restriction,
it would most likely face a constitutional challenge on the grounds that it
undermined the authority that the federal Constitution grants prosecutors to
conduct criminal investigations.Even if
the proposed measures fall short of the ideal,
they still could be very useful in curbing the practice of torture in Chihuahua.

The proposed reform in Chihuahua also addresses the issue of the excessive
use of preventive detention.And on this
issue, it goes further than the Fox
proposal, by striking entirely from
the criminal procedure code the list of "serious crimes" for which preventive
detention is mandatory.Consequently, state judges would have the discretion to adopt
the precautionary measures that are most appropriate for each case.The proposal also limits the length of
preventive detention to a maximum of twelve months.[383]

As this report went to press,
the Chihuahua
legislature had yet to vote on these measures.Yet the fact that these much needed reforms are even on the table is due, in large measure,
to the intense national and international exposure that the state has received
in recent years-which, in turn, is due largely to Mexico's new openness to
international scrutiny.

The state attorney general told Human Rights Watch that, without the opening,
the discussion currently underway in the state would never have taken place.The international scrutiny "was absolutely
necessary to bring change," she
said."It forced a recognition that
something had to be done."[384]

The Lessons of Ciudad Jurez

The case of Ciudad Jurez offers several key lessons
regarding human rights in Mexico
today.The most evident, and most widely reported,
is that violence against women is a major problem in Mexico,
one requiring urgent attention by state and federal authorities.Human Rights Watch focused extensively on one
aspect of this problem in our report,
"The Second Assault: Obstructing Access to Legal Abortion after Rape in Mexico," issued in March 2006.

The other lessons of Ciudad Jurez,
which have received less attention,
are the ones related to the main themes of this report.The first is that human rights and public
security must be understood as complementary aims.In Chihuahua, local authorities responded to a public security
crisis by engaging in abusive behavior,
using coerced confessions to jail scapegoats rather than conducting serious
criminal investigations that might actually solve the crimes.Instead of resolving the problem, in other words,
they merely prolonged it, jailing
presumably innocent people while the true criminals remained at large.

A second, related
lesson is that, in order to improve
both its human rights and public security practices,Mexico
needs to reform the underlying deficiencies of the justice system-both at the
state and federal levels-that give rise to abusive practices.Chihuahua
is on the verge of becoming one of the first states to undertake such a reform
because experienced officials within the justice system have come to see why it
is necessary.

A third lesson regards the value of international scrutiny
for promoting real progress on human rights at the local level.The repeated visits by international monitors
to Ciudad Jurez proved crucial, not
only in reinforcing efforts by local advocates to draw attention to the plight
of the victims and their families,
but also in helping to generate a broad consensus that the justice system was
in need of reform.

And herein lies a final critical lesson: the issues at stake
here are not partisan ones.Mexico's
human rights problems are by no means the province of any one political
party-nor, for that matter, are their solutions.In Chihuahua, the abusive police practices occurred during years
when both PRI and PAN governors were in office.And the state's current justice reform proposal-which largely mirrors
the one promoted at the federal level by a PAN administration-has been
spearheaded by a PRI governor and his attorney general,
who was, herself, ratified in her post by all the major parties in the state
legislature.

It is not clear at this point whether the reform
proposal-and, specifically, the measures to curb torture and the excessive use
of preventive detention-will pass in Chihuahua.And even in the event that they do pass, for
Mexico
as a whole to make real progress in curbing these abuses, similar reforms will
be needed throughout the country, not only in other states, but also at the
federal level.

[9]
O.A.S. General Assembly,
"Inter-American Convention Against Terrorism,"
AG/RES. 1840
(XXXII-O/02), June 3, 2002.Article 15 of this Convention held that anti-terrorist initiatives must
be undertaken in full compliance with international human rights law.To assist states "in complying with their
international legal obligations,"
the IACHR prepared a report "[to] reaffirm and elaborate upon the manner in
which international human rights requirements regulate state conduct in
responding to terrorist threats." This report was adopted by the IACHR in
October 2002.IACHR, "Report on Terrorism and Human Rights," OEA/Ser.L/V/II.116,
Doc. 5 rev. 1 corr., October 22, 2002,
para. 3.

[13]Mexico abstained from voting in the 2001
resolution on the situation of human rights in Cuba, but its representatives held that Mexico was concerned about the situation of
human rights in Cuba, and that they abstained from voting because the
proposed resolution was "biased and politicized."See "Palabras de la Embajadora Mariclaire Acosta,
en relacin con el proyecto de resolucin de la situacin de los derechos
humanos en Cuba," April 18, 2001,http://www.sre.gob.mx/substg/dh/onu/57cdhinterv/interven_acosta57.htm
(retrieved March 2006).

[14]
Nevertheless, the Mexican government
has said that the OAS Permanent Council is not the appropriate forum to discuss
Cuba's compliance with human
rights standards since Cuba
is not currently present in those discussions.See "Intervencion del
Embajador Miguel Ruiz Cabaas,
Representante Permanente de Mexico ante La OEA,
sobre la Situacion de los Derechos Humanos en Cuba ante el Consejo Permanente," May 19,
2003, [online]
http://portal.sre.gob.mx/oea/popups/articleswindow.php?id=7 (retrieved March
2006).

[17]
Letter from Ambassador Garca Moreno,
Permanent Representative of Mexico before the O.A.S.,
to Human Rights Watch, March 15, 2006.

[18]
See information provided by the Mexico
office of the UNHCHR, [online]http://www.hchr.org.mx/oacnudhmexico.htm
(retrieved February 2006).

[19]
During the two-year project with UNESCO,
the government, UNESCO and two
Mexican universities conducted a series of seminars on human rights.As a consequence of the agreement with the
European Commission, the government
organized seminars and meetings to increase the dialogue between itself and
civil society organizations. Mexican
Ministry of Foreign Affairs,La Poltica Exterior Mexicana en la
Transicin (Mexico City: Fondo de Cultura Econmica,
2005), p. 136.

[20]
The government's invitation to an international expert was in response to a
request by the Mexican NGO Centro Prodh.

[24] The international
observers that visited Mexico were the UNHCHR in December 2000, the president of the IACHR in July 2001, the Special Rapporteur on the Independence of
Judges and Lawyers in May 2001,
representatives of the U.N. Committee Against Torture in September 2001, the OAS Special Rapporteur on the Rights of Women
in February 2002, the U.N.Special
Rapporteur on Adequate Housing in March 2002,
the Special Rapporteur on the Human Rights of Migrants in March 2002, UNHCHR in July 2002,
the OAS. Special Rapporteur on Migrant Workers in July 2002, the Special Rapporteur on internal displacement in
August 2002, the president of U.N.
Human Rights Commission's working group on arbitrary detentions in November
2002, the Special Rapporteur on the
situation of human rights and fundamental freedoms of indigenous peoples in
July 2003, the Special Rapporteur
for Freedom of Expression in August 2003,
and international experts of the U.N. Office on Drugs and Crime in October
2003.See Nacional Human Rights Program (Programa Nacional de Derechos Humanos, PNDH),
p. 280.

[26]Other
treaties ratified by Mexico were the Optional Protocol to the Convention on the
Rights of the Child on the involvement of children in armed conflict that had
been signed in September 2000; the Optional Protocol to the Convention on the
Rights of the Child on the sale of children,
child prostitution, and child
pornography that had been signed in September 2000;the Optional Protocol to the Convention
Against Torture and Cruel Inhuman or Degrading Treatment or Punishment that had
been signed in September 2003; the Optional Protocol to the International
Covenant on Civil and Political Rights that had been signed in March 2002; and
the Optional Protocol to the Convention on the Elimination of Discrimination
against Women that had been signed in March 2002.

[27]
The U.N. Declaration on the Protection of all Persons from Enforced
Disappearance adopted by General Assembly Resolution 47/133 of 18 December
1992says in its Article 16 :"2.They [persons alleged to have
committed any of the acts referred to in Article 4] shall be tried only by the
competent ordinary courts in each State,
and not by any other special tribunal,
in particular military courts."

[28]
According to Article 6, "The
interpretation of the content of this law,
as well as the acts by federal authorities,
must be in accordance with applicable international instruments related to
discrimination, with the
recommendations and resolutions adopted by multilateral and regional organs, and other applicable legislation."

[29]
An isolated example is the 2001 constitutional amendment that led to the
inclusion in the Constitution of the prohibition all forms of discrimination, including on the basis of sex.Political Constitution of the United States
of Mexico, Article 1, as amended August 14,
2001.

[33]
According to local rights advocates,
the proposal discussed within the Sub-Commission would have modifiedArticle 1 of the Constitution to read "The
Mexican state shall guarantee the protection of human rights provided for in
international treaties ratified by it.In the protection of these rights,
the interpretation most favorable for the individual shall prevail."The new Article 103 should read "By laws or
acts of authorities that violate individual rights or human rights included in
international treaties ratified by the Mexican state."Instead,
Fox's proposal, by contrast, modified Article 1 to read,
"Human rights are recognized by this Constitution and their protection will
take place in accordance to its terms,"
and modified Article103 to read "By laws or acts of authority that violate
individual rights or human rights."

Two other major differences,
according to the NGOs, was that they
had agreed the proposal would contain an explicit prohibition of torture and
cruel, inhuman or degrading
treatment, as well as a provision on
the obligation to provide a hearing before the executive could expel
foreigners.The Fox proposal does not
contain either of these provisions.

See
press release "Organismos de Derechos Humanos Exigen Garantas por parte del
Ejecutivo Federal para Continuar el Proceso de Dilogo,"
signed by all NGOs that participated in the negotiations,
April 29, 2004.

[36]
Those in charge of implementing the PNDH deliberately chose to place people
from within government agencies in those liaison units,
in order to permeate the entire government structure.Human Rights Watch interview with Daro
Ramrez and Alexandra Haas,Interior Ministry,Mexico
City, November 18, 2005.

[38]
Human Rights Watch interview with Rafael Gonzlez Morales,Mexico City,Mexico, November 18,
2005.Gonzlez Morales is the head of
the Department of Inter-institutional Participation,
which is part of the PGR's Vice Attorney General's Office on Human Rights, Assistance to Victims and Community Services.

Various courses on the use of this evaluation
mechanism were imparted to PGR and state officials. Interior Ministry,
"Informe de Ejecucin del PNDH 2005,"
December 2005, p. 64.

[40]Another
initiative to improve civil society organizations' involvement in government
affairs was the 2004 passing of a federal law to promote activities of civil
society organizations and their participation in the design of public
policies.See Federal Law to Increase
the Activities Performed by Civil Society Organizations (Ley Federal de Fomento
a las Actividades Realizadas por Organizaciones de la Sociedad Civil), February 9,
2004.

[44]
The purpose of it is for all state officials to have greater knowledge on human
rights and to address human rights as a transversal issue when adopting
government policies.In November 2005, the first pilot course was given to twenty-one
public officials working for the Interior Ministry. Interior Ministry,
"Informe de Ejecucin del PNDH 2005,"
December 2005, p. 45.

[48]
They do so through agreements with other state and federal government offices, and by organizing courses and
capacity-building.Examples of these
institutions are the National Counsel on Handicapped People (Consejo Nacional para Personas con
Discapacidad) created in June 2005; the National Institute of Women (Instituto Nacional de las Mujeres, INMUJERES); and the National Counsel to Prevent
Discrimination (Consejo Nacional para
Prevenir la Discriminacin). Interior Ministry,
"Informe de Ejecucin del
PNDH 2005," December 2005, pp. 81-104.

[49]
According to Article 6 of the Mexican Constitution,
"The expression of ideas will not be subject to judicial or administrative
inquiry, unless it attacks the
morals, the rights of a third party, or if it leads to a crime,
or affects public order; the right of access to information shall be guaranteed
by the state."In addition, Article 8 provided that government officials must
respect individuals' right to petition government agencies.According to Article 8,
"Public officials and employees shall respect the exercise of the right of
petition, provided it is made in
writing and in a peaceful and respectful manner; but this right may only be
exercised in political matters by citizens of the republic.Every petition shall be replied to in writing
by the official to whom it is addressed,
and said official is bound to inform the petitioner of the decision taken
within a brief period." In combination,
these two articles establish the individual's right to request and obtain
information held by the government.

The Mexican Supreme Court has further developed the
content of this right through interpretation in case law.In 1992 it held that the right of access to
official information was a social guarantee related to freedom of expression
(Mexican Supreme Court, Tesis 2a.
I/92, Semanario Judicial de la
Federacin, August 1992, p. 44).In
1996 the Supreme Court decided that citizens had a right to receive truthful
information from the government.Information provided by governmental authorities could not be
manipulated or incomplete, nor based
on specific group or individual interests (Mexican Supreme Court, Tesis P. LXXXIX/96,
Semanario Judicial de la Federacin,
June 1996, p. 513).In 2000 the Supreme Court went even further, by holding that the right of access to official
information is an individual guarantee,
which may only be limited on certain occasions by national and social interests, and by rights of third parties (Mexican Supreme
Court, Tesis P. XLV/2000, Semanario Judicial de la Federacin, April 2000,
p. 72).

[50]
In 1995, for example, a nongovernmental organization (NGO) requested
information from President Ernesto Zedillo regarding his salary, income,
and assets, as well as his
allocation of the presidential budget.After waiting a year with no response,
the NGO filed a lawsuit against the presidency to obtain the requested
information.Even though the NGO won the
case, the executive did not disclose
all the information requested, and
the income of the president remained a secret.See Sergio Aguayo and Paulina
Grobet, "Las Violaciones al Derecho
a la Informacin de los Mexicanos. La demanda de Amparo de Alianza Cvica contra la Presidencia de la
Repblica," Alianza Cvica, 1996, pp. 5-10,
21.

[51]Before
a transparency law was passed, the
right of access to official information was mentioned in legislation on the
protection of the environment.In 1996
the General Law of Ecological Equilibrium and Environment Protection (Ley General del Equilibrio Ecolgico y la
Proteccin al Ambiente) was modified to include the right to environmental
information in its Articles 159 to 159 bis 6.But the system that was supposed to implement access to environmental
information was unsuccessful.In 1999, 64 percent of the requests had not been responded
to and 21 percent were not responded to satisfactorily.Isabel Bustillos and Toms Severino, "Diagnosis on Access to Environmental Information
in Mexico.Initiative experience by 'Acceso Mxico'
[Mexico Access]," in IFAI, Right of Access to Information in Mexico: a
diagnosis by society (Mexico City:
IFAI, 2005),
p. 28.

[55]
Joint declaration by Ambeyi Ligabo,
U.N. Special Rapporteur on Freedom of Opinion and Expression, Miklos Haraszti,
OSCE Representative on Freedom of the Media,
and Eduardo Bertoni, OAS Special
Rapporteur for Freedom of Expression,
December 6, 2004, [online]
http://www.cidh.org/Relatoria/showarticle.asp?artID=319&lID=1 (retrieved
January 2006).See also Principle 4 of
the Declaration of Principles on Freedom of Expression,
approved by the IACHR at its 108th regular sessions in October 2000, [online]
http://www.cidh.org/Relatoria/showarticle.asp?artID=26&lID=1 (retrieved
October 2005); and United Nations Economic and Social Council, Commission on Human Rights,
"Civil and Political Rights,
Including the Question of Freedom of Expression: The Right to Freedom of
Opinion and Expression.Report of the
Special Rapporteur, Ambeyi Ligabo, submitted in accordance with Commission resolution
2003/42," (New York: United Nations, 2003).

Although a narrower interpretation of the right of
access to information has prevailed in Europe, the European Court of Human Rights has interpreted
that individuals had the right to obtain information held by the government if
such information affected their private life,
and therefore interfered with their right to privacy and family life.The European
Court has also established that governments may
not restrict a person from receiving information that others wish or may be
willing to impart.European Court of
Human Rights, "Leander v. Sweden," Case 10/1985/96/144,
February 1985, paras. 48 and 74;
European Court of Human Rights,
"Gaskin v. United Kingdom," Case 2/1988/146/200,
June 1989, para. 49; and European
Court of Human Rights, "Guerra and
others v. Italy," Case 116/1996/735/932,
February 1998, paras. 53 and 60.

[57]
In Europe it has been recognized since the
early 1980s. See Toby Mendel, "Libertad de Informacin: Derecho Humano protegido
internacionalmente," Derecho
Comparado de la Informacin,
January-June 2003, pp. 13-19, [online]
http://www.juridicas.unam.mx/publica/librev/rev/decoin/cont/1/cnt/cnt3.pdf
(retrieved November 2005).

The Inter-American Court of Human Rights held in 1985
that effective citizen participation and democratic control, as well as a true debate in a democratic society, cannot be based on incomplete information.
Understanding freedom of expression as both the right to express oneself, and the right to obtain information, the Inter-American Court of Human Rights held that
"freedom of expression is a cornerstone upon which the very existence of a
democratic society rests.It is
indispensable in the formation of public opinion. () It represents, in short,
the means that enable the community,
when exercising its options, to be
sufficiently informed.Consequently, it can be said that a society that is not well
informed is not a society that is truly free."Inter-American Court of Human Rights,
"Compulsory Membership in an Association prescribed by Law for the Practice of
Journalism (Articles 13 and 29 American Convention on Human Rights)," Advisory Opinion OC-5,
November 13, 1985, para. 70.

The OAS General Assembly has held in 2003, 2004,
and 2005 that access to official information is an indispensable requirement
for a democracy to work properly,
and that states have an obligation to ensure access to information. OAS General
Assembly Resolution on Access to Official Information: Strengthening Democracy, AG/Res. 1932 (XXXIII-O/03),
June 10, 2003,
[online] http://www.oas.org/juridico/english/ga03/agres_1932.htm (retrieved
October 2005); OAS General Assembly Resolution Access to Official Information:
Strengthening Democracy, AG/Res.
2057 (XXXIV-O/04), June 8, 2004,
[online]
http://www.upd.oas.org/lab/Documents/general_assembly/2004/ag_res_2057_xxxix_O_04_eng.pdf
(retrieved October 2005); and OAS General Assembly Resolution on Access to
Official Information: Strengthening Democracy,AG/RES. 2121 (XXXV-O/05),
May 26, 2005,
[online] http://www.oas.org/XXXVGA/docs/ENG/2121.doc (retrieved October 2005).

The Chapultepec Declaration,
signed by most heads of state in the hemisphere,
and the Lima Principles, endorsed by
the OAS and U.N. Special Raporteurs on/for Freedom of Expression, also recognize this consensus. The Chapultepec
Declaration determines in its second principle that every person has the right
to seek and receive information, and
in its third principle that "authorities must be compelled by law to make
available in a timely and reasonable manner the information generated by the
public sector." It was adopted on March 11,
1994, by the Hemisphere Conference
on Free Speech held in Mexico City.Experts and thirty-two government
representatives, including former
Mexican President Carlos Salinas de Gortiari,
endorsed it. See [online]
http://www.declaraciondechapultepec.org/english/declaration_chapultepec.htm
(retrieved October 2005). Principle 1 of the Lima Principles establishes access
to information as an individual right and as a necessary component for a
democratic society, and principle 2
establishes that states must make information available in a timely and
complete manner. The Lima Principles were adopted in November 2000 by experts
on freedom of expression and by the U.N. and OAS Special Rapporteurs on Freedom
of Opinion and Expression.The Lima
Principles, [online]
http://www.cidh.org/Relatoria/showarticle.asp?artID=158&lID=1 (retrieved
October 2005).

[58]
Principle 1 of The Public's Right to Know Principles on Freedom of
Information Legislation holds that "[t]he principle that all information held
by public bodies should be subject to disclosure and that this presumption may
be overcome only in very limited circumstances."The Principles on Freedom of Information
Legislation were adopted in June 1999 by Article XIX,
an NGO working on freedom of expression and access to information, in consultation with organizations in different
countries, [online] http://www.article19.org/pdfs/standards/righttoknow.pdf
(retrieved October 2005).It was later
endorsed by the U.N. and Inter-American systems on human rights.See,
for example, IACHR,Report on
Terrorism and Human Rights,
OAS/Ser.L./V/II 116, Doc. 5 rev. 1 corr.
22, October 2002, para. 284; IACHR Annual Report 1999, Vol. III,
Report of the Office of the Special Rapporteur for Freedom of Expression, chapter II,
OEA/Ser.L/V/II.111, Doc. 3 rev., Vol. III; and United Nations Commission on Human
Rights Resolution 1999/36, U.N.
Commission on Human Rights, 56th
Sess., E/CN.4/2000/63 (January 18, 2000),
para. 43.

[59]
Article 19(3) of the ICCPR and Article 13(2) of the American Convention on
Human Rights.

The Declaration of Principles on Freedom of Expression
states that the right may only be limited exceptionally and such limitations
must "be previously established by law in case of a real and imminent danger
that threatens national security in democratic societies." Principle 4 of the
Declaration of Principles on Freedom of Expression,
approved by the IACHR at its 108th regular sessions in October 2000, [online]
http://www.cidh.org/Relatoria/showarticle.asp?artID=26&lID=1 (retrieved
October 2005).

According to The Johannesburg Principles, restrictions must be "necessary in a democratic
society to protect a legitimate national security interest." Principles 1(d)
and 11 of The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, [online]http://www.article19.org/pdfs/standards/joburgprinciples.pdf (retrieved
October 2005).The Johannesburg
Principles were adopted on October 1995 by experts in international law, national security,
and human rights; and were later recognized by the U.N. Special Rapporteur on
Freedom of Opinion and Expression and the OAS Special Rapporteur for Freedom of
Expression.See Report of the Special
Rapporteur Mr. Abid Hussain,
pursuant to U.N. Commission on Human Rights resolution 1993/45, U. N. Commission on Human Rights, 52nd Sess.,
E/CN.4/1996/39 (March 22, 1996), para. 154; and IACHR Annual Report 2003, Vol. III,
Report of the Special Rapporteur for Freedom of Expression, chapter IV,
OEA/Ser.L/V/II.118 Doc. 70 rev. 2.

[62]
For example, in March 2001, the Universidad Iberoamericana organized a seminar
for government officials,
international experts, media
representatives, academics, and civil society representatives to debate which
standards had to be met by access to information legislation. See [online]
http://www.uia.mx/ibero/noticias/boletines/2001/CS0323.html (retrieved October
2005).

[63]
The Oaxaca Group was created when a group of specialists participated in a
seminar on the right of access to information in Oaxaca.The name was given to them by New
York Times correspondent Ginger Thompson,
after she interviewed its members.Human
Rights Watch telephone interview with Ernesto Villanueva,
President of LIMAC and member of the Oaxaca Group,
Mexico City, Mexico, October 24,
2005; and Human Rights Watch telephone interview with Miguel Trevio, Grupo Reforma and member of the Oaxaca Group, Mexico City,
Mexico, December 7, 2005.

[64]
These elements were: the recognition that the right of access to information
was the right of every individual,
that the right includes the possibility to gather information in the hands of
the government, that government
officials have the obligation to provide such information,
that exceptions to this right must be minimal,
that an autonomous entity should decide if there is a dispute over whether
certain information should be public or restricted,
and that it must foresee modifications to all other laws that contradict this
right.See[online] http://www.amed.com.mx/oaxaca2.php (retrieved October
2005).

[73]
Human Rights Watch telephone interview with Juan Francisco Escobedo,Mexico
City,Mexico,
December 19, 2005.Escobedo is one of the two members of the
Oaxaca Group that participated in the negotiations in Congress to elaborate the
final version of the law.

[75]
SISI gives individuals the possibility to request information and follow the
processing of their request through the Internet.The Web site to access SISI is http://www.informacionpublica.gob.mx/portal.html
(retrieved October 2005).

[80]
There were 108,408 information
requests to agencies within the executive,
101,955 of which were filed through
the Internet. Of the total number of requests,
96,451 have been answered and 7,345 have been closed for lack of payment or because
the person requesting information did not answer the IFAI's request for additional
information.The institutions that
received the highest numbers of requests for information were the Ministry of
Finance and Public Credit (Secretara de
Hacienda y Crdito Pblico), the
Mexican Social Security Institute (Instituto
Mexicano del Seguro Social), the
Ministry of Public Education (Secretara
de Educacin Pblica), and the
Ministry of Environment and Natural Resources (Secretara de Medio Ambiente y Recursos Naturales).All of them have answered at least 83 percent
of the requests that were received. IFAI,
"SISI statistics on November 24,
2005," [online]
http://www.ifai.org.mx/textos/stats.xls (retrieved November 2005).

[81]
In 2003, there were 636 complaints, in 2004 there were 1,431, and in 2005 there were 2,353.Ibid.According to Mara Marvn,
President Commissioner of the IFAI,
this increase is due to the fact that information requests are becoming more
complicated, and system users
realize that the decision in a majority of cases is to grant information that
had been denied.Human Rights Watch
interview with Mara Marvn,
President Commissioner of the IFAI,Mexico City,Mexico, November 17,
2005.

[82]In 35 percent of the cases, the IFAI requested that the entity that denied
information partially provide such information,
and in 38 percent of the cases it reversed the agency's decision entirely and
ordered it to provide all the information that had been requested. In the
remaining 27 percent of the cases,
the IFAI confirmed the agencies' decision to deny information.Information
provided to Human Rights Watch by IFAI officials.

[86]
Ibid. See also Mara Vallarta Vzquez and Ma. Concepcin Martnez Medina, "Citizens Claim for Transparency and
Accountability: Experience in Public Resources Deviation Monitoring," in IFAI,Right of Access to Information in Mexico: a diagnosis by society (Mexico City: IFAI, 2005),
pp. 35-46.

[87]
The transparency law partially addresses this potential problem through the
tenure of the commissioners.Of the
five commissioners, two will be in
office until September 2006 (and may be re-elected once for a seven-year term);
two others will be in office until September 2009; and one will be in office
until April 2011.Yet two consecutive
administrations could still severely undermine the IFAI through poor selections
of commissioners.

[96]
By December 2004, the Supreme Court
provided information in 28,386
requests for information, which is
almost 100 percent of the requests.Mexican Supreme Court, "El Poder Judicial de la Federacin, Salvaguarda del Orden Jurdico,"Press
Release number 701, December 15, 2004,
[online] http://www.scjn.gob.mx/inicial.asp (retrieved December 2005). The
Judicial Council complies with transparency obligations on its Web site-see
http://www.cjf.gob.mx/acceso%5Finformacion/ (retrieved December 2005). Between
June 2003 and October 2004 it received 638 information requests, which included information on 1,514 issues.Of those, in 1,062 cases the information was provided, including certified copies of judicial decisions, copies of agreements adopted by the Judicial
Council, names of people working in
certain offices, and names of
federal judges that were sanctioned during a period of time. "Informe General de Control y Seguimiento de
Solicitudes Generadas por los 61 mdulos de Acceso a la Informacin del Consejo
de la Judicatura Federal," [online]
http://www.cjf.gob.mx/acceso_informacion/presentacion/INFORMEGENERALDESOLICITUDES.pdf
(retrieved December 2005).

[99]
Supreme Court Justice Jos Ramn Cosso told Human Rights Watch that the
judiciary is working to have all decisions available online, as well as a search engine.Human Rights Watch interview with Jos Ramn
Cosso,Mexico City,Mexico,
November 17, 2005.

[102]
See Articles 130-135 of the Organic Law of the Mexican Congress (Ley Orgnica del Congreso General de los
Estados Unidos Mexicanos),
September 1999, [online]
http://www.cddhcu.gob.mx/leyinfo/doc/168.doc (retrieved November 2005).

[104]
Between June 2003 and October 2005 the Senate received 4,792
information requests, 4,696 of which were sent via e-mail. Mexican Senate,
"Informe de Gestin de Solicitudes de Informacin Recibidas 2003-2005," October 2005,
[online]
http://www.senado.gob.mx/transparencia/content/informes/informe_octubre_2005.pdf
(retrieved November 2005). The Senate has responded to 96 percent of
these requests.Between June 2004 and
June 2005 the Senate denied information requested in six (out of 1,763) cases.During that year, there were
six appeals, four of which were
presented by individuals who did receive information but requested it to be
presented to them in another format. Transparency and Access to Information
Committee, "Annual Report 2004-2005," June 2005,
[online]
http://www.senado.gob.mx/transparencia/content/informes/informe_octubre_2005.pdf
(retrieved November 2005). The House of Representatives has received, between June 2003 and June 2005, a total of 1,127
information requests.Only 0.53 percent
of the cases were considered to request classified information. Liaison unit of
the House of Representatives,
"Transparency in the House of Representatives. The Liaison's Unit Annual Report
2005," June 2005, [online]
http://transparencia.diputados.gob.mx/media/informe2004-2005.pdf (retrieved
November 2005).

[104]
For the Senate, see [online]
http://www.senado.gob.mx/transparencia/content/informacion/index.htm and for
the House of Representatives, see
[online] http://transparencia.diputados.gob.mx/index.php?node=0 (retrieved
November 2005).

[110]
In November 2004, two Senate
Commissions held that Congress should approve legislative modifications that
allow for the re-election of members of Congress.They argued there was no impediment in
Mexican law or history to do so, and
that it would ensure a more professional Congress and greater
accountability.Senate Commissions on Constitutional Issues and
Legislative Studies, "Dictamen sobre
la Iniciativa con Proyecto de Reformas a los Artculos 59 y 116 de la
Constitucin Poltica de los Estados Unidos Mexicanos,
en materia de reeleccin legislativa,"
November 30, 2004.

[115]
Information provided to Human Rights Watch by Rodolfo Vergara, head of the IFE
liaison unit,Mexico City,Mexico,
January 19, 2006.

[116]Human
Rights Watch telephone interview with Arturo Zrate,El Universal,Mexico City,Mexico, December 20,
2005.The court decided that if the IFE had obtained information on the salaries of political
parties' leaders when it audited the parties,
it should have that information in its files (even if the verification was done
in the political parties' offices,
which was the IFE's
argument).If it does not, it should request that information from the
political parties, and it should
provide it to the person requesting it. Federal Electoral Tribunal, file SUP-JDC-041/2004,
June 25, 2004,
[online] http://www.trife.org.mx/index.asp (retrieved January 2006).

[122]
Ibid.See also Oficio No. C1/ST/137/05
by the CNDH, and see for example
IFAI decision on File No. 1726/05,
November 23, 2005, [online]
http://www.ifai.org.mx/resoluciones/recursos_rev/2005nov23/1726.pdf (retrieved
December 2005).

[123]
The advisory committee is a body composed of members of civil society. It has, among other duties,
the obligation to oversee the budget and internal regulations of the CNDH.

[125]
According to Article 9 of the CNDH implementing regulations on transparency:
"According to Article 4 of the Law on the CNDH,
and in accordance with its Article 14(I),
information or documentation in files pending before the CNDH is considered
privileged information."

According to Article 4 of the Law on the CNDH: "The
CNDH staff shall handle confidentially information and documentation related to
the issues it may evaluate."

According to Article 48 of the Law on the CNDH: "The
CNDH is not forced to provide any evidence it used to any government agency or
official to which it issued a recommendation,
nor to any individual.If these
evidences were requested, [the CNDH]
will have discretion to decide whether to provide them."

According to Article 78 of the internal rules of the
CNDH: "Investigations carried forward by the CNDH staff,
the procedural steps carried forward after each complaint,
and the documentation received from the authorities and the individuals will be
handled with the most absolute privilege,
in the parameters set forth by Article 4 of the Law.In any case,
authorities will abide by [the transparency law and the CNDH's implementing
regulations].The aforementioned
provisions do not apply to considerations the CNDH takes into account when
issuing recommendations,
declarations, or preparing annual or
special reports.When someone requests
copies of, or access to, information held in a file pending before the CNDH
related to his or her own case, [he
or she may receive the information only if] the case was concluded and the
content of the file may not be considered privileged or confidential
information."

According to Article 125 of the CNDH rules of
procedures, the CNDH may conclude
cases due to different reasons.

[128]
Article 10 of the CNDH implementing regulations on transparency.

[129]
When the CNDH evaluates the evidence presented in a complaint and concludes
that there was a human rights violation,
it issues a recommendation.Each
recommendation will include a description of the facts of the case and the
evidence analyzed by the CNDH, an
analysis of the human rights violations,
and specific recommendations to government agencies to act.Recommendations issued by the CNDH are then
made public; and the CNDH has a follow-up mechanism by which it evaluates
compliance by government agencies.See
Articles 128 to139 of the CNDH rules of procedure.

According to the CNDH annual reports, in 2003 it concluded 3,342
cases and only 22 were recommendations (0.65 percent); in 2004 it concluded 3,800 cases and only 39 were recommendations (1.02
percent); and in 2005 it concluded 4,717
cases and only 28 were recommendations (0.59 percent).Information available online at
http://www.cndh.org.mx/lacndh/informes/informes.htm (retrieved April 2006).

[130]
Letter signed by Graciela Sandoval Vargas of the technical secretariat of the
CNDH's information committee with reference to file 2003/3-T, July 28,
2003.

[131]
The appeal does not generate any effect on other requests for information; i.e., the next time an individual or organization
requests this type of information from the CNDH,
they will have to present their cases to the courts and wait for their
resolution.

[132]
It would have been possible to create a "general" law (that would automatically
make state governments subject to the law),
but those negotiating the creation of the law decided instead to pass a
"federal" one, thinking it would
lead to a series of state laws that would follow the pattern established by the
federal government. Human Rights Watch telephone interview with Juan Francisco
Escobedo,Mexico City,Mexico,December 19,
2005.

[134]
A comprehensive comparative analysis of laws passed prior to October 2005
concluded that the best laws were those in Campeche, Distrito Federal,
Morelos, Sinaloa and Baja California.Those that did worse in the evaluation were Tlaxacala,Aguascalientes,Puebla,
Nuevo Len, and Veracruz. Ernesto Villanueva et. al,Derecho de Acceso a la Informacin Pblica
en Mxico Indicadores Legales (Mexico City: LIMAC,
2005), pp. 4 and 35.

[137]
David Sobel et. al., "The Federal
Institute for Access to Public Information in Mexico and a Culture of
Transparency," Project for Global
Communication Studies at the Annenberg School for Communication at the
University of Pennsylvania, February
2006, p. 31.

[139]The states are Colima, Nuevo
Len, Durango,
Coahuila, Guanajuato, Estado de Mxico,
Michoacn, Morelos, Nayarit,
Puebla, Quertaro, San Luis Potosi and Sinaloa. David Sobel
et. al., "The Federal Institute for
Access to Public Information in Mexico and a Culture of Transparency," Project for Global Communication Studies at the
Annenberg School for Communication at the University of Pennsylvania, February 2006,
p. 31.

[149]
The first gallery is extremely organized: the staff has cards that state what
information is available in each box and where to find it.But there is no list of how many cards there
are or which cards cover which topics.The information is completely catalogued but the catalogue is not
entirely available to the public.So
investigators must request information on a topic to the staff in that gallery, and they will receive those cards the staff
considers relevant for the research they are conducting.Given the management problems mentioned
earlier, particularly the full
discretion granted to archive staff on what information should be provided, the existence of a catalogue that may not be
entirely seen by researchers is useless to limit arbitrariness in the provision
of information.Under this scheme, only the archive staff is aware of the "whole
picture."The second gallery contains
more than 3,000 boxes and only 600
of them are indexed. (Human Rights Watch interview with Dulce Mara Liahut
Baldomar, director of Central
Historical Archive at the National Archive,Mexico City,Mexico, January 20,
2006.)The boxes sent to the National
Archive by SEDENA are amongst the 600 indexed ones,
but the index is rough and simple and does not contain detailed information of
what is the content of each box.Therefore, when researchers
want to look for information in this gallery,
they have to look at all boxes, one
by one, and see whether there is
information that could be valuable for their research.

[150]
David Sobel et. al., "The Federal
Institute for Access to Public Information in Mexico and a Culture of
Transparency," Project for Global
Communication Studies at the Annenberg School for Communication at the
University of Pennsylvania, February
2006, p. 36.

[159]
The IFAI's decision was made in connection with an information request by the
NGO LIMAC (Libertad de Informacin Mxico A.C) that asked the Attorney
General's Office (Procuradura General de
la Repblica, PGR) for a copy of
the investigation by the Special Prosecutor's Office related to the possible
commission of genocide during Mexico's "dirty war."The Special Prosecutor's Office answered that
since they had already presented the case before a judge,
they no longer had a copy of the requested file.In September 2004,
the NGO appealed before the IFAI.In its
decision, the IFAI reversed the
PGR's decision to deny information,
arguing that they were investigating the probable commission of genocide, which was a crime against humanity.The IFAI ordered the PGR to provide a public
version of the investigation that would not publicize personal data, in order to protect the privacy of the victims and
the accused. Ernesto
Villanueva et. al,Importancia Social del Derecho a Sabe
Preguntas y Respuestas en los Casos Relevantes del IFAI (Mexico City:
LIMAC, 2005),
pp. 77-93. The information was finally given to the NGO by the PGR, making previously unknown information public.

[160]
Letter from Dulce Mara Liahut Baldomar,
director of Central Historical Archive at the National Archive, to Adela Cedillo,
April 18, 2005.

[172]
Human Rights Watch interview with torture victim,
Atoyac de lvarez, Guerrero, May 24,
2003.Many of the people interviewed, including victims,
victims' relatives and officials within the Special Prosecutors Office, preferred to speak on the condition that their
identities would not be revealed.

[183]
International Covenant on Civil and Political Rights (ICCPR), ratified by Mexico on March 23, 1981; American Convention on Human Rights, ratified by Mexico on March 24, 1981; Convention against Torture and Other Cruel, Inhuman,
or Degrading Treatment or Punishment,
ratified by Mexico on January 23,
1986; Inter-American Convention to Prevent and Punish Torture, ratified by Mexico on June 22, 1987; Inter-American Convention on Forced
Disappearance of Persons, ratified
by Mexico on April 9, 2002.

[184]
The Inter-American Court of Human Rights,
for example, has held that "the
State has the obligation to use all the legal means at its disposal to combat
[impunity], since impunity fosters
chronic recidivism of human rights violations,
and total defenselessness of victims and their relatives."Inter-American Court,
Paniagua Morales et al., Judgment of March 8,
1998, para. 173.

[185]
Article 25 of the American Convention on Human Rights.Similarly,
the Inter-American Convention to Prevent and Punish Torture requires states to
"take effective measures to prevent and punish torture" and "other cruel, inhuman,
or degrading treatment or punishment within their jurisdiction" (Article
6).It also requires states parties to
guarantee that "any person making an accusation of having been subjected to
torture within their jurisdiction shall have the right to an impartial
examination of his case," and that
"their respective authorities will proceed properly and immediately to conduct
an investigation into the case and to initiate,
whenever appropriate, the
corresponding criminal process" (Article 8).Also, the ICCPR established
the right of individuals to effective judicial recourse against human rights
violations (Article 2(3)).

[187]
"Areas in which steps need to be taken towards full observance of the human
rights set forth in the American Declaration of the Rights and Duties of Man
and the American Convention on Human Rights,"Annual Report of the IACHR
1985-86, OEA/Ser. L/V./ II.68, Doc. 8,
rev. 1, September 26, 1986,
ch. V, p. 205.

[188]
The U.N. Human Rights Committee articulated this principle in the case
Quinteros v. Uruguay, concluding that the mother of a "disappeared"
person was entitled to compensation as a victim for the suffering caused by the
failure of the state to provide her with information.Case No. 107/1981."The Committee understands the anguish and
stress caused to the mother by the disappearance of her daughter and by the
continuing uncertainty concerning her fate and whereabouts. The author has the
right to know what has happened to her daughter. In these respects, she too is a victim of the violations of the
Covenant suffered by her daughter in particular,
of article 7."

[190]
The Court has held that parents have a right to obtain reparationfor suffering inflicted upon them by
the forced disappearance of a child. This obligation is not satisfied with the
offer to pay monetary damages.It must
also include ending the state of uncertainty and ignorance regarding the fate
and whereabouts of the "disappeared" persons. Inter-American Court, Aloeboetoe Case,
Reparations (Article 63.1 American Convention on Human Rights), Judgment of September 10,
1993, para. 76.

[195] "Acuerdo por el que se disponen diversas
medidas para la procuracin de justicia por delitos cometidos contra personas
vinculadas con movimientos sociales y polticos del pasado." Order of the President of the
Republic,Mexico,
November 27, 2001.The official name of the office is Special
Prosecutor's Officefor social and
political movements of the past (Fiscala
Especial para movimientos sociales y polticos del pasado).

[196]
In January 2002, the Mexican Supreme
Court ruled that Attorney General's Office erred when it chose not to
investigate the 1968 Tlatelolco massacre because the period allotted by the
statute of limitations had run. The court ruled that even though the alleged
crimes took place more than thirty years earlier,
the issue of statutory limitation should be addressed only after an
investigation was carried out."Resolucin dictada en el amparo en
revisin 968/99 de la Suprema Corte de Justicia de la Nacin relacionada con
los hechos de 1968."

[198]
All cases are at the first stage of the procedure before the judge (instruccin).After this stage ends,
the defense counsel and prosecutor must argue their conclusions before the
judge.

[199]
The case 62/2003 is pending before the Juzgado Cuarto de Distrito de Nuevo Len
and relates to the illegal detention of Jess Piedra Ibarra.The case 11/2004 relates to the illegal
detention of Ignacio Arturo Salas Obregn and was added to this case.

[206]
When asked why more have not been sought out for interviews, the prosecutor in charge of the forced
disappearance cases explained that,
under Mexican law, prosecutors need
to have compelling reason to seek such interviews-and if they summon potential
witnesses without having it, they
can be charged with prosecutorial harassment.Human Rights Watch interview with Juan Carlos Snchez Ponton,Mexico
City,
January 18, 2006.

[207]
Human Rights Watch interview with official in the Special Prosecutor's Office,Mexico City, May 28,
2003.

The EAAF reached this conclusion after evaluating the
case files of the Special Prosecutor's Office and visiting four
locationsin Sinaloa and Guerrero.

[211]
Human Rights Watch interview with officials in the Special Prosecutor's Office, January 18,
2006.

[212]
The first gallery of the National Archive contains documents of the DFS, and the second gallery contains documents of the
IPS.The second gallery includes
documents from various offices that depended from the Interior Ministry, including DFS and SEDENA.

[216]
President Fox instructed the Minister of Defense to have the PGJM provide
prosecutors with information needed for their investigations. Order of
the President of the Republic,Mexico, November 27,
2001, Chapter 1, Article 3.

[217]
Human Rights Watch interview with Jos Sotelo,
director of the historical documentation team of the Special Prosecutor's Office,Mexico City, March 9,
2006.

[234]
When appealing, the Special
Prosecutor's Office presented four arguments.The first three were rejected by the Supreme Court,
and the fourth was considered valid. The four arguments (in italics) and the
Supreme Court's conclusions are as follows:

a) According to
international law, no statute of
limitations should apply to the crime of genocide.

The Supreme Court held that
Article 14 of the Mexican Constitution establishes the principle of
non-retroactivity of criminal law,
which applies also to international treaties.Mexicoratified the Convention on
the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against
Humanity and included an interpretative declaration according to which the
Convention only applies after it was ratified (2002).Even if this declaration were considered a
reservation, which may never
contradict the object and purpose of the treaty,
the Supreme Court concluded that this only matters at the international level
since not applying the reservation internally would,
in this case, mean not applying the
Mexican Constitution, which is
unacceptable.

b) According to
Mexican procedural law, the term of
the statute of limitations applicable to the crime of genocide was interrupted
in this case by investigative procedures that took place between 1971 and 2004.

The Supreme Court considered
that, according to Mexican criminal
procedure law, not every
investigation that takes place counts as an act that may interrupt the term of
the statute of limitations.Only those
acts performed by the Prosecutor's office or Judge that aim at solving the
crime or determining who was responsible for committing the crime may interrupt
the term of the statute of limitations.The Supreme Court concluded that the investigative acts mentioned in the
appeal did not validly interrupt the term of the statute of limitations.

c) The judicial
officials in the city government,
which should have investigated and prosecuted the case,
were unable to do so properly.The case
was against a former Mexican president,
and the situation in the country (basically,
city government officials did not have enough independence and autonomy from
the federal government) made such investigation and prosecution practically
impossible.

The Supreme Court argued that
the judicial system in Mexico
was based on the Mexican Constitution (basically,
Articles 21 and 102) and, as such, it could not violate any of the constitutionally
prescribed guarantees of due process.According to the Court,
former President Echeverra directly controlled the federal and city Prosecutors'
offices because it was constitutionally prescribed.The Court held that there were no convincing
arguments by the Special Prosecutor's Office to sustain that the observance of
the entire constitutional order was interrupted during Echeverra's presidency.

d)The term of the statute of limitations
should not begin during the period that Luis Echeverra lvarez and Mario
Augusto Jos Moya y Palencia
held office since during that time they could not be prosecuted for the acts of
1971.

The Court considered that
until December 1, 1976, when Echeverra and Moya y Palencia left office, the federal Prosecutor's office was unable to
initiate a criminal prosecution against them for the acts of 1971.The Court concluded that the term of the
statute of limitations had not expired in these two cases only (it did for the
rest of the accused).

Appeal file number 1/2004-PS that derived from the
Supreme Court's power to attract(8/2004-PSf), June 15, 2005.

[235]
The special prosecutor has argued that Mexican courts have made this argument
in the decision to extradite Ricardo Cavallo,
an Argentine military official accused of human rights violations in Argentina
in the late 1970s.On August 25, 2000, a
Spanish court (Juzgado de Instruccin # 5
de la Audiencia Nacional de Madrid) requested Cavallo's preventive
detention in order to extradite him to Spain.The extradition request was for Cavallo's
responsibility for genocide, torture, and terrorism that took place in Argentina
during the "dirty war" period (1976-1983).But, while the Supreme Court
authorized the extradition, it did
not address the substantive issue of whether genocide could be committed
against a political group.

The Mexican judge that received and evaluated the
extradition request did not directly address the issue of whether a political
group may be a victim of genocide.The
judge argued that he was only required to evaluate whether the Spanish
extradition request was done in accordance to the bilateral extradition treaty
between Mexico and Spain (Tratado
de Extradicin y Asistencia Mutua en Materia Penal entre los Estados Unidos
Mexicanos y el Reino de Espaa.) In
fact, he considered that he was
legally unable to evaluate the merits of the crimes for which Cavallo was being
extradited (i.e., whether the
elements that constitute the crime had been proven,
and whether or not the accused was responsible).In order to establish that the alleged facts
constituted prima facie genocide, the judge simply transcribed the arguments
presented by the Spanish judge in the extradition request.In a brief paragraph,
the Mexican judge concludes that the Spanish government has fulfilled the
requirements of the bilateral extradition treaty since it has "included a
detailed analysis of the illegal facts,
including when and where they happened,
and its legal analysis."(Decision on
extradition 5/2000 by Judge Guadalupe Luna Altamirano,
6th district judge of Mexico
City in federal criminal cases,
January 11, 2001.)

After Cavallo presented an appeal, the Mexican Supreme Court confirmed the
extradition.Cavallo argued that the
Convention on the Prevention and Punishment of the Crime of Genocide violated
the Mexican Constitution because it allows the extradition of political crimes.
According to Cavallo, genocide may
be considered a political crime, and
as such, may not be subject to
extradition.In its decision, the Supreme Court does not address whether
genocide may be committed against a political group,
but rather evaluates if the crime of genocide may be of political nature.The Supreme Court held that Mexico had
adopted an objective theory to determine which crimes ought to be considered
political; i.e., it takes into
account what is being protected, and
not the intention of the author of the crime.A crime is considered political if it is committed against the state, and therefore the crime of genocide does not have
a political nature.The Supreme Court
established that the crime of genocide was created to protect certain human
groups considered stable, which
constitute the area in which the individual members of the group develop
themselves, in such a way that it is
comparable to a state. (Mexican Supreme Court,
decision in appeal 140/2002, June 10, 2003,
[online] http://www.scjn.gob.mx/Asuntos/2003/CAVALLOENGROSE(X)2.pdf (retrieved
April 2006).)

[236]
According to Article 149 BIS of the Mexican Criminal Code,
"The crime of genocide will be committed by the person that, with the purpose of destroying (in whole or in
part) one or more national groups or of an ethnic,
racial or religious character,
commits, through any means, crimes against the life of members of these groups, or if [this person] imposes massive sterilization
with the purpose of impeding the reproduction of the group."

[237]According
to Article 6 of the Rome Statute of the International Criminal Court, "For the purpose of this Statute, "genocide" means any of the following
acts committed with intent to destroy,
in whole or in part, a national, ethnical,
racial or religious group, as such:
(a)Killing members of the group; (b)Causing serious bodily or
mental harm to members of the group; (c)Deliberately inflicting on the
group conditions of life calculated to bring about its physical destruction in
whole or in part; (d)Imposing measures intended to prevent births within
the group; (e)Forcibly transferring children of the group to another
group."

[239]
Article 1 of the Convention on the Non-Applicability of Statutory Limitations
to War Crimes and Crimes against Humanity. The convention refers to war crimes
and crimes against humanity, whether
committed in time of war or in time of peace,
as they were defined in the Charter of the International Military Tribunal, in Nuremberg,
and reaffirmed by the United Nations General Assembly (in Resolution 95 (I) of
11 December 1946).

[240]
Article 4 of the Convention on the Non-Applicability of Statutory Limitations
to War Crimes and Crimes against Humanity. The convention's preamble explains
the rationale for this provision,
stating that "the application to war crimes and crimes against humanity of the
rules of municipal law relating to the period of limitation for ordinary crimes
is a matter of serious concern to world public opinion,
since it prevents the prosecution and punishment of persons responsible for
those crimes," and that "it is
necessary and timely to affirm in international law,
through this Convention, the
principle that there is no period of limitation for war crimes and crimes
against humanity, and to secure its
universal application."

[241]
The United Nations Treaty Handbook (sec. 3.6.1) explains the difference between
a reservation and an interpretative declaration: "A State may make a
declaration about its understanding of a matter contained in or the
interpretation of a particular provision in a treaty. Interpretative
declarations of this kind, unlike
reservations, do not purport to
exclude or modify the legal effects of a treaty. The purpose of an
interpretative declaration is to clarify the meaning of certain provisions or
of the entire treaty."

[242]
The prosecution of crimes under international customary law is entirely
compatible with international law and the treaties Mexico has ratified even if such
crimes did not appear in the national statutes at the time they were committed.
Art 15(2) of the ICCPR (that in its first paragraph contains the prohibition of
retroactive criminal laws) states: "Nothing in this article shall prejudice the
trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles
of law recognized by the community of nations." Mexico did not enter any
reservation to this provision of the ICCPR.

[248]The U.N. Human
Rights Committee (HRC), which
monitors states' compliance with the ICCPR,
has repeatedly called on states parties to subject military personnel alleged
to have committed human rights violations to civilian jurisdiction.For example,
in 1997 it urged the Colombian government to take "all necessary steps . . . to
ensure that members of the armed forces and the police accused of human rights
abuses are tried by independent civilian courts,"
specifically recommending "that the jurisdiction of the military courts with
respect to human rights violations be transferred to civilian courts."
Concluding observations of the Human Rights Committee: Colombia,
U.N. Doc. CCPR/C/79/Add. 76, May 3, 1997,
para. 34.The Committee has made similar
recommendations to the governments of Chile
and Peru, on the grounds that the "wide jurisdiction of the
military courts to deal with all the cases involving prosecution of military
personnel. . . contribute[s] to the
impunity which such personnel enjoy against punishment for serious human rights
violations." Concluding observations of the Human Rights Committee: Chile, U.N. Doc. CCPR/C/79/Add. 104,
March 30, 1999,
para. 9. See also U.N. Doc. CCPR/C/79/Add. 67,
July 25,1996,
para. 23.Similarly, the Inter-American Court has held that "[i]n a
democratic State governed by the rule of law,
the scope of authority of criminal military courts must apply on a limited and
exceptional basis," and that
"[m]ilitary officers must be prosecuted for the commission of only those
offenses and infractions that,
because of their nature, have an
adverse effect on the assets of the military."Inter-American Court, Durand
and Ugarte Case, Judgment of August
16, 2000,
para. 117.

[249]
United Nations,Question of the human rights of all persons subjected to any form of
detention or prison and, in
particular, torture and other cruel, inhuman,
or degrading treatment or punishment.Report
of Special Rapporteur Nigel Rodley,
submitted pursuant to Resolution 1997/38 of the Commission on Human Rights, E/CN.4/1998/38/Add.2,
January 14, 1998, paras. 86,
88[j].

[252]Article 9 of theInter-American Convention on Forced Disappearance of Persons stipulates
that "acts constituting
forced disappearance shall not be deemed to have been committed in the course
of military duties."The convention also
provides that "Persons alleged to be responsible for the acts constituting the
offense of forced disappearance of persons may be tried only in the competent
jurisdictions of ordinary law in each state,
to the exclusion of all other special jurisdictions,
particularly military jurisdictions."Mexico
submitted a reservation to the latter provision,
stating that "Military jurisdiction does not constitute a special
jurisdiction in the sense of the Convention," and therefore the military justice system could continue to assert
jurisdiction "when a member of the armed forces commits an illicit act
while on duty."

[254]
The Mexican Supreme Court has ruled out the possibility that the same case can
be tried simultaneously under military and civilian jurisdictions:"neither the historical background of
Article 13 of the Constitution, nor
the social conditions prevailing when the article was created, nor the ideas expounded by the legislators at its
drafting, nor the literal meaning of
the words in its text can sanction the interpretation that when in a military
crime a civilian is implicated, the
military authorities will judge the members of the army and the civilian
authorities will judge the civilian person; and therefore,
the civilian authorities are the ones who shall exercise jurisdiction in a
military process where there are civilians involved."Mexican Supreme Court, Pleno,
Quinta poca, Semanario Judicial de
la Federacin, Tomo XL, p. 1393.

[255]
In a document submitted to the Special Prosecutor's Office, the PGJM wrote that it had detected "the
participation in the criminal activities analyzed in the present document of
other persons who did not have military status but did have the status of
government agents"

[256] "Acusan a generales de matar 143 civiles," Reforma, October 29,
2002.Human Rights Watch spoke to
one of the individuals listed, who
had been temporarily detained by the military,
in 1974, but was eventually set
free.Human Rights Watch interview with
Antonio Hernndez,Mexico City,
January 8, 2003.

[261]
When the Special Prosecutor's Office appealed the decision on August 15, 2005,
the same judge decided the case had already been sent to military
jurisdiction.On August 19, 2005,
the Special Prosecutor's Office appealed before a higher court (Primer Tribunal Unitario de Circuito), which denied the appeal on the same grounds.

[262]
The judge concluded that it did not have jurisdiction to evaluate the case
because the acts did not constitute a crime committed as a consequence of his
military duties, and argued that, according to Article 13 of the Code of Military
Justice, military jurisdiction was
restrictive.

[263]
The federal court based its decision on the 2005 ruling of the Supreme Court
(Mexica Supreme Court, Primera Sala, Tesis 148/2005,
October 26, 2005).\

[264]
Human Rights Watch interview with official in the Special Prosecutor's Office, May 2003.

[266]
Human Rights Watch telephone interview with Jos Sotelo,Mexico City,
director of the historical documentation team of the Special Prosecutor's
Office, March 9, 2006.

[267]
Articles 35-39 (Chapter 7) of the Federal Law against Organized Crime.

In Mexico, these faculties have already been granted to
prosecutors pursuing cases against organized crime,
albeit with mixed results.

[268]
Parts of this section were originally published in Human Rights Watch/Americas, "Mexico
Military Injustice: Mexico's
Failure to Punish Army Abuses," A Human Rights Watch Report, vol. 13,
no. 4(B), December 2001.

[284]
On March 5, 1999, judicial police arrived in the community of Rancho
Nuevo where, the day before, a memorial service had been held for Alvaro
Garca's brother, Otoniel Garca
Torres, who had been shot to death
two weeks earlier. According to community members,
Otoniel Garca had attempted to prevent illegal foresting by an official in the
ejido of Ro Fro. The official
responded by seeking the help of a local political boss,
who in turn hired the police to carry out the killing. According to community
witnesses, the police arrived
shooting and the locals responded,
killing four police and three madrinas (paramilitaries)
who had accompanied them. [Undated
letter by Luis Torres, signed by
Estafania Torres, Marria Cruz Yaez, Salud Torres Montiel,
Guadalupe Torres, Epifanio Peralta, Conseccin Segura. Also,
Human Rights Watch interviews with lvaro Garca Avila and Alfredo Garca
Torres, Acapulco, Guerrero,
Mexico, March 31, 2001.]

[291]
Human Rights Watch interview with Feliciano Julin Gmez Ortiz, his wife Esperanza,
and his two sons, as well as with
his lawyers from the Center for Human Rights and Advice for Indigenous
Populations (Centrode Derechos Humanos
y Asesora para Pueblos Indgenas,
CEDHAPI),Tlaxiaco, Oaxaca,
Mexico, November 21, 2005.

[299]
Arbitrary detention is related to the lack of powers of law enforcement agents
to investigate crimes.Since law
enforcement agents have no investigative powers,
they can only combat crime by detaining individuals in the street if they are
caught committing a crime.As we discuss
in the section on excessive use of preventive detention,
police officers usually have to a fill a quota of detained individuals.The incentive to detain people is even
greater if law enforcement agents can use coercion to obtain a confession that
will later be used as evidence in trial because they can virtually detain
anyone and then use a coerced confession against them.

This situation is exacerbated by the fact that
arbitrary detention is not a typified crime in Mexican criminal codes, it is generally possible to detain someone in flagranti if a third person indicates
that the accused was seen committing a crime,
and it is not possible to present an injunction against an arbitrary detention
if the accused is then formally charged with a crime (because the appeal
becomes moot).

[302]
Magistrate of the Second Unitary Tribunal of the 21st Circuit, Decision in criminal case 79/2000, January 31,
2001. In the same trial, Garca
Torres was convicted on drug charges,
based on the testimony of the soldiers who said they captured him while he was
carrying three kilos of poppy seed down the road from the house. Although he
had never confessed to this, the
judge dismissed his testimony denying his guilt and the corroborating testimony
of eyewitnesses, on the grounds that
they "lack[ed] juridical relevance in the face of the direct and categorical
accusations made by the captors."

[311] Mexican Supreme Court, Primera Sala,Tesis 108, Sexta poca,
Apndice de 1995, tomo II, Parte SCJN,
p. 61.Other
judicial decisions held that a confession given before the judicial police and
the prosecutors and not before a judge will only have evidentiary value if it
is corroborated by other evidence. Tribunal Colegiado del Vigsimo Circuito,
Tesis 478, Octava poca, Apndice de 1995,
tomo II, parte TCC, p. 284.

[314]
Mexican Supreme Court, Primera Sala, Tesis 1a.CLXXI/2004,
Semanario Judicial de la Federacin y su Gaceta XXI,January 2005, p.
412.Another recent decision by a lower
court also provides the guarantee of adequate counsel and the prohibition of
torture by defining a confession as "an admission of facts that constitute a
crime for which the person is being accused,
given by a person of more than eighteen years old,
mentally capable of doing so, which
is given before a person with legal faculties to receive it, with assistance of his or her defender, and without any use of violence." Cuarto Tribunal Clegiado del Dcimo
Circuito, Tesis XV.4o.J/1, Novena poca,
Semanario Judicial de la Federacin y su Gaceta,
tomo XXI, January 2005, p. 1527.

[317]
The Istanbul Protocol became a United Nations document in 1999 and it is also
called "Manual on Effective Investigation and Documentation of Torture and
other Cruel, Inhuman or Degrading
Treatment or Punishment."

[320]
See the proposed reform to the Federal Code of Criminal Procedure [online]
http://www.presidencia.gob.mx/docs/reformalegal_ssp.pdf,
and the proposed reform to the Constitution [online]
http://www.presidencia.gob.mx/docs/reformas_ssp.pdf (retrieved April 2006).

[324]The
Oaxaca reform
is the clearest one, and establishes
both conditions expressly in its proposed Article 138.The Jalisco and Zacatecas proposals
specifically establish the declaration by the accused must be given in presence
of the defense attorney, and after
the accused was assisted by the attorney.They both also propose that the judge must read the accused his or her
rights prior to the declaration,
which implicitly means that the judge must be present. In the Jalisco proposal
it is Articles 162 to 167, and in
the Zacatecas one it is Articles 164 to 172.

[325]
A ministerial declaration will be valid evidence only if it was given in
presence of a defense attorney, if
it was videotaped, if the prosecutor
proves that the accused was not forced to declare,
and if the accused was not illegally detained at that time.Article 361 of the proposed reform.

[331]
Between 1994 and 2004, the number of
unconvicted prisoners in Mexico
has almost doubled: it increased from 42.167 to 81.947.Guillermo Zepeda,
"Myths of Pretrial Detention in Mexico,"Open
Society Justice Initiative, 2004, p. 8.

[332]
Guillermo Zepeda, "Myths of Pretrial
Detention in Mexico,"Open
Society Justice Initiative, 2004, p. 6.The percentage of prisoners in preventive
detention at the state level is of 44.5 percent,
and at the federal level it is of 31.2 percent.Open Society Justice Initiative,
"The Economic Costs of Pretrial Detention in Mexico: A Cost-Benefit Analysis," (forthcoming 2006),
p. 22.

[338] Ibid.See alsoU.N. Commission on Human Rights,
"Report of the Working Group on Arbitrary Detention on its visit to Mexico," E/CN.4/2003/8/Add.3,
December 17, 2002, p. 3.

[339]
In addition to the international human rights standards mentioned in the next
section, when the person detained is
under 18 years old, there is also a
violation of article 37 (c) of the Convention of the Rights of the Child and
Article 10 (2) (b) of the International Covenant on Civil and Political Rights.

[341]
Article 9(3) of the ICCPR; see also General Comment No. 8 of the Human Rights
Committee on the ICCPR, Art. 9
(Sixth Sess. 1982), Report of the
Human Rights Committee, adopted Apr.
12, 1984 by the Human Rights
Committee, 40 U.N. GAOR Supp. (No.
40) U.N. Doc. A/40/40 (stating "[p]re-trial detention should be an
exception and as short as possible").

(b) Pre-trial detention may be ordered only if there
are reasonable grounds to believe that the persons concerned have been involved
in the commission of the alleged offenses and there is a danger of their
absconding or committing further serious offences,
or a danger that the courts of justice will be seriously interfered with if
they are left free;

(c) In considering whether pre-trial detention should
be ordered, account should be taken
of the circumstances of the individual case,
in particular the nature and seriousness of the alleged offence, the strength of the evidence,
the penalty likely to be incurred,
and the conduct and personal and social circumstances of the person concerned, including his or her community ties;

Eighth United Nations Congress on the Prevention of
Crime and the Treatment of Offenders,
Havana, 27 August-7 September 1990:
report prepared by the Secretariat (New York: United Nations, 1991),
E.91, IV,
chap.I, sect.C (para.2).

[343]
See Article 10(1) of the ICCPR; Article 5(2) of the American Convention on
Human Rights; and Rules 15 to 26 of the Standard Minimum Rules for the
Treatment of Prisoners, adopted by
the First United Nations Congress on the Prevention of Crime and the Treatment
of Offenders, held at Geneva in 1955, and aproved by the Economic and Social Council by
its resolution 663 C (XXIV) of July 31,
1957 and 2076 (LXII) ofMay 13, 1977.

[344]
Article 10 (2) (a) of the ICCPR; Article 5 (4) of the American Convention on
Human Rights; and Rules 8 (b) and 84 to 93 of the Standard Minimum Rules for
the Treatment of Prisoners.

[345]
Article 10(3) of the ICCPR; Article 5(6) of the American Convention on Human
Rights; and Rules 58 to 61 and 71 to 81 of the Standard Minimum Rules for the
Treatment of Prisoners.

[346]
Under the proposal, Article 20 of
the federal Constitution would read: "In all criminal cases, the accused,
the victim or the offended party will have the following rights.

A. The accused [will have the right to]:

(I) The presumption of innocence until declared guilty
of a crime by competent courts.[The
accused]shall face trial in liberty, except if,
in accordance to the law:

(a)It
is considered a serious crime,unless the judge decides otherwise,

(b)
It is a non-serious crime,
sanctioned with prison sentence, if
the accused cannot guarantee his or her
ability to pay reparations, and

(c)
The judge has reversed possibility that the accused face trial in provisional
liberty (in both serious and non-serious
crimes).

[347]
Under the proposal, Article 252 of
the Federal Code of Criminal Procedure would read: "() The judge may grant
provisional liberty to the accused,
in light of the circumstances of the investigated crime in the case of crimes
in [some sections of the article that lists serious crimes] as long as the
accused has not been previously convicted of a serious crime, has always previously complied with procedural
obligations, and is not subject to
an extradition process related to the crime for which he or she is being
accused.In these cases, the crime will not be considered serious for the
purposes of granting provisional liberty."

[348]
Under the proposal, Article 237 of
the Federal Code of Criminal Procedure would read: "Every person accused of
having committed a crime will face trial in liberty,
unless the accusation is related to crimes considered serious by this Code and
the judge has not authorized the liberty,
or if the accusation is related to non-serious crimes but the accused has not
provided guarantees for reparations,
or in both types of crimes, if the
accused was previously granted provisional liberty and a judge reversed such
decision. "

See proposed Article 20(A) of the Constitution, and proposed Articles 237-252 and 336-341 of the
Federal Code of Criminal Procedure.

[349]
In the Jalisco proposal it is Articles 189 to 206; in the Chihuahua
proposal it is Articles 177 to 194; and in the Oaxaca proposal it is Articles 169 to
174.According the director of
legislative studies in the Nuevo Len State Attorney's office, they are beginning to draft a reform proposal with
the same provisions.Email
correspondence between Human Rights Watch and Nina Ruiz Lozano, March 13,
2006.

[361]
The Chihuahua
state attorney's office informed Human Rights Watch that,
between 1993 and 2005, there were
377 homicides of women, eighty
percent of which were related to family or gender violence.Information on cases until November 9, 2005 provided to Human Rights Watch by the
Chihuahua State Prosecutor's office. Human Rights Watch interview with Patricia
Gonzlez, Chihuahua State Prosecutor, and with Cony Velarde,
Deputy Prosecutor for the North Zone of Chihuahua State,Ciudad Jurez,Mexico, November 14,
2005.

[367]
The first steps taken by the federal government were the 2001 creation of a
national institute to design public policies to promote gender equality, and giving the mandate to two congressional
commissions to evaluate the situation in Ciudad Jurez. Mariclaire Acosta
Urquidi, "The Women of Ciudad Jurez," Center for Latin American Studies of Berkley
University, Policy Paper No. 3, May 2005,
pp.9-10.

According to Article 199 of the proposed reform, "In sexual crimes,
in crimes committed against minors,
and in crimes related to intra-family violence,
the judge will not propose an agreement between the parties nor decide that
there will be a hearing for that purpose unless the victim or his or her legal
representatives requests it."
Social workers, lawyers, and NGO representatives told Human Rights Watch
that public prosecutors often tell victims of domestic and sexual violence to
reconcile with the aggressor, in
particular if he is a family member.
Undue emphasis on reconciliation and mediation is problematic for a number of
reasons. Victims of domestic and sexual violence are unlikely to file a
report unless the aggressor is a repeat abuser or the rape or violence was
committed by a stranger. Further,
an emphasis on reconciliation contributes to the pervasive notion that "low
levels" of violence or sexual abuse in marriage are unavoidable and therefore
not criminal. Insistence that the female victim negotiate with the
aggressor can also lead to further abuse,
and assumes that the victim and the perpetrator of the crime are equally
empowered to negotiate their relationship. In fact,
while voluntary mediation certainly should be offered by the state, undue emphasis on mediation can perpetuate an
existing power imbalance, especially
if not accompanied by policy measures that offer real alternatives to staying
in an abusive relationship. Such measures might include the availability
of long-term shelters, and economic
support for single parents.Human Rights
Watch, "The Second Assault:
Obstructing Access to Legal Abortion after Rape in Mexico,"
A Human Rights Watch Report, Volume 18,
No. 1(B), March 2006, pp. 25-27.

[370]
The Commission's program to eradicate violence against women in Ciudad Jurez, which lists forty areas of action involving
different federal and state agencies,
aims at ensuring justice, prevention, and the promotion of women's human rights. The
Commission's work has been, among
others, to generate links between
different actors, create a database
on the cases of homicides and disappearances,
elaborate diagnosis of the structural causes of homicides and disappearances of
women, and promote assistance to
victims and their families. National Commission to Prevent and Eradicate
Violence Against Women in Ciudad Jurez, "Segundo Informe de Gestin mayo
2004 abril 2005," pp. 232-6.

[371]
Human Rights Watch interview with members of the EAAF,
Ciudad Jurez, Mxico, November 14,
2005.

[373]
Human Rights Watch interview with Patricia Gonzlez,
Chihuahua State Prosecutor, and with
Cony Velarde, Deputy Prosecutor for
the North Zone of Chihuahua State,Ciudad Jurez,Mexico, November 14,
2005.

[376]
Critics of the reparations program argue that the authorities have used the
funds to discourage demands for further investigations and prosecutions, by requiring the recipients of reparations to sign
a waiver agreeing not to seek independent confirmation of their daughters'
identities with the EAAF.A second
criticism is that the PGR designed the program without any meaningful
consulation with the affected parties.Finally, the compensation has
not been accompanied by a governmental recognition that the state had failed in
its obligation to investigate and prevent the murders.

[377]
New officials increased the resources and personnel of the Prosecutor's office, moved their offices so that they are now closer to
the centers for the attention of victims,
they created a new system for forensic science,
and they reactivated old investigations.They identified as a major flaw in past investigations that judicial
police was unable to investigate and coordinate its activities with other
agencies, and therefore decided to
increase coordination between prosecutors,
police, and experts.Human Rights Watch interview with Patricia
Gonzlez, Chihuahua State Prosecutor, and with Cony Velarde,
Deputy Prosecutor for the North Zone of Chihuahua State,Ciudad Jurez,Mexico, November 14,
2005.

[378]
Information provided to Human Rights Watch by the Chihuahua State Prosecutor's
Office.

[379]
Human Rights Watch interview with Patricia Gonzlez,
Chihuahua State Prosecutor, and with
Cony Velarde, Deputy Prosecutor for
the North Zone of Chihuahua State,Ciudad Jurez,Mexico, November 14,
2005.